Hard Hat Case Notes

• Pages: 85-90
• Date: 01 October 2024
• Author: Hugh D. Brown,Catherine W. Delorey

Published in The Construction Lawyer Volume 43, Number 4, ©2024 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Forum on Construction LawThe Construction Lawyer Fall 2024

85

By Hugh D. Brown and Catherine W. Delorey

Hugh D. Brown is a shareholder with Fabyanske Westra Hart & Thomson P.A. in Minneapolis,

Minnesota. Catherine W. Delorey is senior counsel in the San Francisco, California, office of Gordon Rees

Scully Mansukhani, LLP.

Federal Circuit Narrows Task Order Bar and Opens Door to Subcontractor Procurement

Challenges

In a recent decision, the Federal Circuit signicantly expanded the Court of Federal Claims (COFC)’s

jurisdiction over bid protests by narrowing the scope of the “task order bar” under the Federal Acquisition

Streamlining Act of 1994 (FASA), which deprived the COFC of jurisdiction over protests challenging task

orders. It further expanded COFC’s jurisdiction over bid protests by granting subcontractors standing to

challenge procurement decisions in certain situations.

Percipient.ai v. United States, CACI, Inc. involved a procurement by the National Geospatial-Intelligence

Agency (NGA), which provides intelligence to the US government by analyzing geospatial and other

imaging. The procurement was for a system to improve its processes for obtaining and storing visual

intelligence data and integrating those capabilities with “computer vision” (CV), a form of artificial

intelligence. The solicitation was referred to as SAFFIRE. SAFFIRE sought a single-award indefinite-

delivery, indefinite-quantity (IDIQ) contract. IDIQ permits a broad solicitation for a general procurement

goal, and subsequent detailed solicitations for individual task orders as specific needs arise. In this case,

SAFFIRE required two components: (1) an information repository for storing and managing data,

known as “SER,” and (2) the aforementioned user-facing CV system. The solicitation was accompanied

by a single task order directing the contractor to develop and deliver the CV suite of systems. The NGA

awarded both the SAFFIRE contract and Task Order 1 to CACI, Inc.-Federal (CACI).

Percipient.ai, Inc. (Percipient) offered a commercial product that could meet the CV requirement but

could not meet the SER component. Accordingly, it did not bid for the SAFFIRE contract or challenge

the SAFFIRE solicitation or award. Instead, it approached CACI to ask it to evaluate Percipient’s Mirage

platform for the CV portion of the contract. CACI rejected Mirage and instead developed its own system.

Despite Percipient’s argument that NGA was required to use commercially available services whenever

possible under 10 U.S.C. § 3453, NGA declined to force CACI’s hand on the point.

Having been rejected as a subcontractor to CACI, Percipient brought an action to the Court of Federal

Claims under the “bid protest” portion of the Tucker Act, 28 U.S.C. § 1491(b)(1). The government and

CACI moved to dismiss, arguing that (1) the Court of Federal Claims lacked subject matter jurisdiction

based on the FASA task order bar given the issuance of Task Order 1 and (2) Percipient lacked standing

because it did not respond to the solicitation as a prime contractor, but as a subcontractor. The trial court

held that the FASA task order bar applied and granted the motion to dismiss. Percipient appealed.

The Court of Federal Claims reversed, holding that the FASA task order bar did not apply and that

Percipient had standing, notwithstanding its status as a disappointed subcontractor. Concerning the task

order bar, FASA provides that a “protest is not authorized in connection with the issuance or proposed

issuance of a task or delivery order.” 10 U.S.C. § 3406(f)(1). The Federal Circuit has previously interpreted

the task order bar to mean that a protest is barred if it challenges the issuance of the task order directly

HARD HAT CASE NOTES