Percipient.ai, Inc. v. U. S. and CACI, Inc.-Federal, 2023-1970, June 7, 2024

[bob7947]

I'm surprised this opinion has not drawn much attention here. It's 59 pages and is from the Court of Appeals for the Federal Circuit.  

From an entry by Blank Rome LLP that explains the above opinion.  Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims.

 

[here_2_help]

Bob, I read the decision when you posted it on the front page. (Thank you for doing that, by the way!)

My sense is that the issue is important to protest attorneys and their clients. I'm not sure if it does (or should) impact how a CO does business. I would be interested to hear other opinions on that.

[Vern Edwards]

13 minutes ago, here_2_help said:

I'm not sure if it does (or should) impact how a CO does business.

The decision opens the door to protests by prospective subcontractors based on government acquisition strategy decisions.

[bob7947]

Recently, I read another example of courts expanding their involvement in the contracting process.  When I went back to post it here, I could not find the opinion.  Here is the gist of it.  It may have been the CAFC reviewing an opinion by the COFC.  Anyway, the court concluded that to protest a debarrment action, a protester must use a federal district court.  I didn't have time to check the judge's reasoning.  

My position is that all courts must be removed from the federal contracting process.  That is going to require sifting through the words in the Tucker Act, etc.  I believe there should be an opportunity to appeal any decision or opinion after we eliminate the courts from the process.

In the case of a GAO initial bid protest decision, it would go to GAO for reconsideration as an appeal - by another procurement attorney.  

I the case of a dispute, if goes from a contracting officer's final decision to one of the Boards of Contract Appeals for any appeal--and that's it.  Yeah, there is more than two BCAs but that's ok.  We don't need courts searching for more work for other courts.  

Once we get rid of the courts, we can put page limits on decisions/opinions.    

[Don Mansfield]

Here's a COFC case that was filed under seal just three days after the Percipient.ai case was filed (there was a weekend in between). The COFC held that the protestor was not an interested party because they were not an actual or prospective offeror:

https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2023cv2047-51-0