Last week, the Supreme Court declined to review Percipient.ai, Inc. v. United States, 153 F.4th 1226 (Fed. Cir. 2025), a high‑profile Federal Circuit decision that limits who may bring a protest at the U.S. Court of Federal Claims (COFC). Percipient.ai invested years and untold legal fees in protesting and appealing COFC’s “interested party” standard, underscoring just how consequential meeting that definition is for government contractors seeking to challenge federal procurement decisions. In this blog, we explain why positioning your company as an “interested party” is one of the most important actions you can take to preserve your ability to file bid protests before COFC.
Percipient.ai’s Cautionary Tale
In January 2023, Percipient.ai filed a post-award bid protest at COFC under the Tucker Act, alleging the government violated 10 U.S.C. § 3453, which requires agencies to procure commercial or non-developmental products “to the maximum extent practicable.” There was only one problem: Percipient.ai never competed for the prime contract. Accordingly, COFC dismissed the protest.
Percipient.ai appealed and, in June 2024, a Federal Circuit three-judge panel decided that, because Percipient.ai did not “challenge a contract, proposed contract, or solicitation for a contract . . . or the issuance of a task order,” it had standing to protest even though it was not an actual or prospective bidder. The Circuit relied on 28 U.S.C. § 1491(b)(1), which allows an “interested party objecting to…any alleged violation of statute or regulation in connection with a procurement or a proposed procurement” to bring a bid protest.
The government requested rehearing and the Federal Circuit issued a ruling en banc in August 2025, vacating the June 2024 panel decision:
We have 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. In [a previous case] we explained that, in enacting ADRA [the Administrative Dispute Resolution Act], “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.” We see no reason to depart from this settled interpretation.
153 F.4th at 1235 (emphasis added)(internal citations omitted).
Undaunted, Percipient.ai asked the Supreme Court to review the en banc decision, stating that it was nonsensical to extend the “interested party” standard to protests about alleged statutory or regulatory violations related to procurements, and warning that the decision effectively blocks enforcement of important law ensuring the government maximizes its use of commercial products. On January 12, 2026, approximately three years since Percipient.ai first filed its protest, the Supreme Court declined to hear the case, making the en banc decision the final say on the matter.
Lessons Learned
Percipient.ai argued that COFC’s “interested party” framework should not apply when a protest alleges a statutory or regulatory violation “in connection with” a procurement—particularly where the violation allegedly prevented the protester from competing in the first place. The Federal Circuit disagreed, so the two‑part test for interested‑party status at the COFC stands. To bring a protest, a company must:
- Be an actual or prospective bidder, and
- Have a direct economic interest in the procurement.
The Supreme Court’s decision not to review the Percipient.ai decision leaves the above standard for an “interested party” firmly in place.
Why This Matters for Government Contractors
Government contractors who want to preserve their protest rights must understand the significant implications of the “interested party” standard, particularly commercial technology providers that may feel shut out of procurement opportunities.
- No bid, no standing. Even if a company believes an agency violated procurement statutes, it generally must submit a bid—or at least demonstrate a definite intent to bid—to preserve its right to protest.
- Statutory challenges are not exempt. You still need to demonstrate “interested party” status, even if you intend to file allegations that an agency failed to follow commercial‑item preference laws or other procurement statutes.
- Strategic competition matters. Sitting out a procurement—even one that appears improper—may waive your ability to challenge it later.
If your company is navigating a complex procurement or considering a potential protest, understanding the interested party standard is essential. If you have questions about your standing to file a protest at COFC, please contact Katie Burrows, Eric Valle, Josie Farinelli, or another member of PilieroMazza’s Bid Protests Group.
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If you’re seeking practical insights to gain a competitive edge by understanding the government’s compliance requirements, tune into PilieroMazza’s podcasts: GovCon Live!, Clocking in with PilieroMazza, and Ex Rel. Radio.
