Amicus Curiae Brief — Percipient.ai, Inc., Petitioner v. United States, et al.

Supreme Court briefNov 7, 2025

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No. 25-428

In the Supreme Court of the United States

PERCIPIENT.AI,

Petitioner,

UNITED STATES, CACI, INC.-FEDERAL,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE U.S.

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Brief for Palantir Technologies Inc.;

Eight Partners VC, LLC; and Joe Lonsdale as

Amici Curiae in Support of Petitioner

Zachary A. Austin

Samantha L. Clark

Jason W. Moy

PALANTIR TECHNOLOGIES

INC.

1025 Thomas Jefferson St.

NW, Ste. 600

Washington, DC 20007

(703) 270-3135

zaustin@palantir.com

Jeffrey M. Harris

Counsel of Record

J. Michael Connolly

James F. Hasson

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

jeff@consovoymccarthy.com

November 7, 2025

Counsel for Palantir

Technologies Inc.

(Additional Counsel on Inside Cover)

Ian Shannon

EIGHT PARTNERS VC, LLC

501 2nd St., Ste. 300

San Francisco, CA 94107

Counsel for Eight Partners

VC, LLC and Joe Lonsdale

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ...................

iii

INTEREST OF AMICI CURIAE ........................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. The Federal Circuit’s decision undermines bipartisan defense reforms and

poses serious risks to national security ...

A. The decision below undercuts FASA

by preventing interested parties from

challenging violations of the law ........

B. The decision below will deprive the

military and intelligence agencies of

cutting-edge technologies ....................

C. The decision below will strangle innovation in the defense technology industry at a critical juncture ................

D. The decision below will increase delays and cost-overruns.........................

II. The Federal Circuit’s decision is grievously wrong ...............................................

A. The Federal Circuit failed to give effect to the plain text of §1491..............

B. The decision below is incompatible

with the structure and purpose of

§1491(b)(1) ...........................................

TABLE OF CONTENTS—Continued

Page

C. The Federal Circuit improperly prioritized legislative history over the

statute’s text ........................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Acuity-CHS Middle E. LLC v.

United States,

173 Fed. Cl. 788 (2024) .............................

Centech Grp., Inc. v. United States,

554 F.3d 1029 (Fed. Cir. 2009) .................

Epic Systems Corp. v. Lewis,

584 U.S. 497 (2018) ...................................

Exxon Mobil Corp. v. Allapattah Servs.,

Inc.,

545 U.S. 546 (2005) ...................................

Freytag v. Comm’r,

501 U.S. 868 (1991) ...................................

George v. McDonough,

596 U.S. 740 (2022) ...................................

Monsalvo v. Bondi,

145 S. Ct. 1232 (2025) .............................. 21, 22

Niz Chavez v. Garland,

593 U.S. 155 (2021) ...................................

Palantir USG, Inc. v. United States,

904 F.3d 980 (Fed. Cir. 2018) ........ 1, 4, 5, 9, 14

Sandifer v. United States Steel Corp.,

571 U.S. 220 (2014) ...................................

Savantage Fin. Servs., Inc. v.

United States,

595 F.3d 1282 (Fed. Cir. 2010) .................

TABLE OF AUTHORITIES—Continued

Page(s)

Scanwell Laboratories, Inc. v. Shaffer,

424 F.2d 859 (D.C. Cir. 1970) ...................

Sw. Airlines Co. v. Saxon,

596 U.S. 450 (2022) ...................................

Truck Insurance Exchange. v. Kaiser

Gypsum Co., Inc.,

602 U.S. 268 (2024) ................................... 5, 20

Wisconsin Cent. Ltd v. United States,

585 U.S. 274 (2018) .................................. 18, 22

STATUTES AND REGULATIONS

5 U.S.C. §702 ................................................

10 U.S.C. §3014 ............................................

10 U.S.C. §3453(a)(3)..................... 3, 9, 18, 26, 27

10 U.S.C. §3453(b) ................................... 3, 18, 26

10 U.S.C. §3453(b)(1)....................................

5, 8

10 U.S.C. §3453(b)(2).................. 3, 6, 8-10, 21, 27

10 U.S.C. §3453(c) ........................................

10 U.S.C. §3453(c)(5) ....................... 3, 6, 9, 10, 27

28 U.S.C. §1491 ............................ 4, 10, 19, 21-25

28 U.S.C. §1491(b)(1).................. 1, 3, 4, 10, 18-27

28 U.S.C. §1491(b)(4).................................... 23, 24

28 U.S.C. §1491(b)(5)....................................

41 U.S.C. §1502 ............................................

TABLE OF AUTHORITIES—Continued

Page(s)

41 U.S.C. §3307 ............................................

Pub. L. 110-417, §803(a), 122 Stat. 4356,

4519 (2008) ................................................

48 C.F.R. §16.306..........................................

48 C.F.R. §16.306(a)-(b)................................

48 C.F.R. §31.205-6(a) .................................. 6, 16

48 C.F.R. §44-201-1 ......................................

48 C.F.R. §44-201-1(b) ..................................

48 C.F.R. §212.212(1) ...................................

48 C.F.R. §252.242-7006 ..............................

OTHER AUTHORITIES

140 Cong. Rec. H37 (daily ed. Sept. 20,

1994) ..........................................................

Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws (Jan.

1991) ..........................................................

Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws (Jan.

1993) ..........................................................

Ashley Roque, Frustrations Over Army’s

Robotic Combat Vehicle Autonomy, Acquisition Approach, Breaking Defense

(July 22, 2024), perma.cc/3PUU UBEK ...

TABLE OF AUTHORITIES—Continued

Page(s)

Mark Hvizda, et al., Dispersed, Disguised,

and Degradable: The Implications of the

Fighting in Ukraine for Future U.S.-Involved Conflicts, RAND Corp. (2025),

bit.ly/4o4wl7K ........................................... 4, 12

Memorandum from Sec’y of Def. to Senior

Pentagon Leadership, Army Transformation and Acquisition Reform (April

30, 2025), bit.ly/3L6H17i ..........................

NASA Inspector General, IG 24-001,

NASA’s Transition of the Space Launch

System to a Commercial Services Contract (Oct. 12, 2023) .................................. 16, 17

Permanent Subcomm. on Investigations, S.

Comm. on Homeland Sec. & Governmental Affs., The Air Force’s Expeditionary

Combat Support System (ECCS) (July 7,

2014), perma. cc/JUR8-78AZ ....................

President’s Blue Ribbon Comm’n on Def.

Mgmt., Final Report to the President

(1986), bit.ly/3LheP1r ...............................

Shyam Sankar, The Defense Reformation,

perma.cc/K5ZM-W32A .............................. 16, 17

U.S. Dep’t of Defense, Software Modernization

Strategy

(Feb.

2022),

bit.ly/4nrlALD ...........................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Warren Katz, The ‘Cost Plus’ Boondoggle

That Hobbles U.S. Defense, Breaking Defense (Oct. 10, 2024), perma.cc/3JKN6XRH ......................................................... 13, 15

William Greenwalt, Congress Must Again

Strengthen the Federal Acquisition

Streamlining Act, Am. Enter. Inst. (Nov.

8, 2024), bit.ly/49oMEHT .........................

INTEREST OF AMICI CURIAE*

Palantir Technologies Inc. is a leading U.S. commercial software company founded in 2003 to create

the world’s best data analysis software. Palantir’s

first customers were American intelligence agencies

and warfighters. Today, Palantir also provides its cutting-edge commercial decision-making software to

Fortune 500 companies, non-profits like hospitals,

and public institutions.

As a frequent provider of commercial software to

both the United States Government and businesses

who hold direct (or “prime”) contracts with the Government, Palantir has a significant interest in the

Court’s resolution of the question presented: whether

a subcontractor who alleges that an agency’s violation

of the Federal Acquisition Streamlining Act of 1994

(“FASA”) prevented it from bidding on a subcontract

is an “interested party” under 28 U.S.C. §1491(b)(1).

Palantir was the plaintiff in the seminal case interpreting FASA’s scope and effect, and it continues to

believe that properly applying and enforcing FASA is

crucial to the future of government procurement and

to America’s national security. See Palantir USG, Inc.

v. United States, 904 F.3d 980 (Fed. Cir. 2018). As an

American company unwaveringly committed to the

Per Rule 37.2, counsel for Palantir notified all parties’

counsel of its intent to file this amicus brief more than 10 days

before the due date. Per Rule 37.6, no counsel for a party authored this brief in whole or in part, and no person other than

amicus or its counsel made a monetary contribution to its preparation or submission.

defense of this nation, Palantir also has an interest in

ensuring that American warfighters always have the

necessary tools to dominate their adversaries.

Palantir is joined by members of the venture capital community prepared to stand up for the next generation of commercial innovators interested in providing cutting-edge solutions to the government. The

venture capital industry has a strong interest in the

outcome of this case because the Federal Circuit’s decision affects the promising companies in which they

invest. Joe Lonsdale is the founder and managing

partner of Eight Partners VC, LLC (“8VC”), which

builds and invests in the world’s most ambitious companies.

SUMMARY OF ARGUMENT

A sharply divided en banc Federal Circuit just decided its first bid protest case in more than forty

years—and it was grievously wrong. Pet.Br.37. As the

4-judge dissent recognized, “[t]his is a straight-forward statutory-interpretation case with significant

impact on the government contracting community.”

App.45. The decision below severely undermines

FASA, Congress’s signature defense procurement reform. If allowed to stand, it will deprive the national

security community of critical tools necessary to counter adversaries; stifle innovation in the defense technology sector; and result in delays and cost overruns

in defense programs.

FASA guarantees offerors of commercial products

“an opportunity to compete in any procurement.” Id.

§§3453(a)(3), (b) (emphasis added). It does so by requiring federal agencies and prime contractors alike

to do “market research” and determine whether commercial products meet their needs before reinventing

the wheel. See, e.g., 10 U.S.C. §3453(c)(5).1 FASA demands that agencies acquire eligible commercial products, including “components of items supplied to [an]

agency” under a prime or subcontract, “to the maximum extent practicable.” Id. §3453(b)(2).

To ensure agency compliance with procurement

laws like FASA, §1491(b)(1) authorizes “action[s] by

an interested party objecting to … any alleged violation of statute or regulation in connection with a procurement.” It follows that if an agency violates FASA

by failing to ensure prime contractors consider commercial items when awarding subcontracts, then a

spurned subcontractor can sue to force the agency to

follow the law.

Yet the Federal Circuit found that subcontractors

that provide commercial products are not “interested

parties” under §1491(b)(1), even when an agency violates the rights FASA guarantees them, because they

could not bid on the original prime contract. App.1618.

By giving entrenched contracting officers and

prime contractors “a roadmap for circumventing the

1 FASA also created a similar scheme for non-defense gov-

ernment procurements, which are equally impacted by the decision below. See, e.g., 41 U.S.C. §3307.

law,” Pet.Br.23, the decision below will deprive military and intelligence agencies of cutting-edge technologies at the worst possible time. A RAND Corporation

report commissioned in response to the Ukraine war

found that U.S. forces need “improvements in remote

sensing, automation, and data integration” to prevail

against a peer adversary like China. Mark Hvizda, et

al., Dispersed, Disguised, and Degradable: The Implications of the Fighting in Ukraine for Future U.S.-Involved

Conflicts

36,

RAND

Corp.

(2025),

bit.ly/4o4wl7K. Advanced software companies like

Percipient provide such capabilities. But the Federal

Circuit’s new rule will degrade incentives for such

companies to design defense-specific innovations or

compete to offer them to the government.

That is exactly the opposite of what Congress intended, as purchasing commercial items “can eliminate the need for research and development, minimize

acquisition leadtime, and reduce the need for detailed

design specifications or expensive product testing.”

Palantir, 904 F.3d at 983.

The Federal Circuit’s decision is also wrong on the

merits. The majority failed to give effect to the plain

meaning of “interested party” under §1491(b)(1); prioritized unrelated legislative history over straightforward statutory interpretation; and disregarded the

purpose and history of the statute.

The majority did not even mention the text of

§1491 for the first 14 pages of its opinion—and once it

did, it subordinated that text to the legislative history

of separate laws that were enacted for different purposes. In the process, the majority reached a conclusion that is not only at odds with the text of the statute

but also inconsistent with its purpose and structure.

And the majority ignored this Court’s decision in

Truck Insurance Exchange. v. Kaiser Gypsum Co.,

Inc., where the Court interpreted the nearly identical

phrase “party in interest” to mean “entities that are

potentially concerned with or affected by” a challenged action. 602 U.S. 268, 278 (2024).

The Federal Circuit’s 7-4 en banc decision is both

profoundly important and profoundly mistaken, and

this Court should grant certiorari to correct it.

ARGUMENT

The Federal Circuit’s decision undermines

bipartisan defense reforms and poses

serious risks to national security.

FASA is critical to America’s national security. It

requires federal agencies to purchase commercial

products (rather than bespoke or custom-designed

products) “to the maximum extent practicable.” 10

U.S.C. §3453(b)(1). FASA passed 425-0 in the House

and by voice vote in the Senate, reflecting a bipartisan

and unanimous determination that market pressures

drive innovation. See Palantir, 904 F.3d at 983.

“FASA achieves its preference for commercial

items” by requiring agencies to conduct market research and determine whether available commercial

products will meet their needs before developing new

ones. Id. at 984. Because Congress wanted to deliver

the best products to Government agencies as quickly

as possible, it specified that FASA’s market-research

and commercial-preference requirements apply

throughout the procurement process—to contracting

and subcontracting decisions alike. See 10 U.S.C.

§§3453(b)(2), (c)(5).

The decision below severely undermines FASA by

dramatically limiting the universe of “interested parties” who can file bid protests in the Court of Federal

Claims when the government violates the statute.

App.16-18. Bid protests are the linchpin of FASA enforcement because they are the most common mechanism for ensuring that agencies follow the statute. By

unraveling the enforcement framework Congress provided, the Federal Circuit’s decision will deprive warfighters of next-generation commercial products; throttle innovation in the defense sector; and foster delays

and wasteful spending. It may be technical, but it will

undoubtedly cost this country taxpayer dollars and

American lives.

A. The decision below undercuts FASA by

preventing interested parties from challenging violations of the law.

Before 1994, the government relied almost exclusively on “cost-plus” contracts, which were as dysfunctional then as they are now. See President’s Blue Ribbon Comm’n on Def. Mgmt., Final Report to the President 44-48 (1986), bit.ly/3LheP1r. Under the cost-plus

model, the Government reimburses the prime contractor for all its costs—including employee salaries—

throughout the project and guarantees a certain level

of profit or return even if the project goes over-time or

overbudget. See 48 C.F.R. §31.205-6(a).

Nontraditional defense contractors like Palantir

are defined by their refusal to bid on certain cost-plus

contracts. See 10 U.S.C. §3014. Instead, Palantir sells

goods and services to the government at a firm fixed

price as it would in a typical commercial transaction.

Because many government contracts require a traditional contractor (that is, one that bills by the hour

instead of by-project) to serve as the prime, Palantir

has often served as a subcontractor. Cf. 41 U.S.C.

§1502; 48 C.F.R. §252.242-7006.

Such subcontracting is possible because traditional contractors who are awarded cost-plus contracts rarely design or build the products by themselves. See 48 C.F.R. §44-201-1. Instead, primes parcel

out many of their obligations to various subcontractors and integrate the components at the end. See id.

§44-201-1(b).

Because traditional prime contractors do not bear

their own expenses and are guaranteed a set rate of

return on cost-plus contracts, they often have no

meaningful incentive to complete work under budget

or ahead of schedule. In fact, their incentives are often

precisely the opposite: they get paid more the longer a

project takes. The Executive Branch thus concluded

that cost-plus contracts “cost too much, take too long

to develop, and, by the time they are fielded, incorporate obsolete technology.” President’s Blue Ribbon

Comm’n on Def. Mgmt, supra, at 44.

Congress took notice. An advisory panel established by Congress warned that reliance on cost-plus

contracting was driving commercial “subcontractors

and suppliers of system components” out of the defense industry because it incentivized contractors to

reinvent the wheel each time instead of purchasing

existing commercial products. Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws I5 (Jan. 1993). The panel’s report contained model legislation that formed the basis for FASA. See id. at 116.

In 1994, Congress passed FASA to implement

“sweeping reforms to the Federal Procurement System.” 140 Cong. Rec. H37 (daily ed. Sept. 20, 1994)

(Statement of Rep. John Conyers). The Act “represent[ed] the coordinated efforts of the majority and

minority” to “apply some common-sense approaches”

to “reduce the inefficiencies of the system,” and “provide more competitiveness in our Government procurement.” 140 Cong. Rec. H37 (daily ed. Sept. 20,

1994) (Statement of Rep. William Clinger).

FASA requires the Government to “acquire commercial services [and] commercial products … to the

maximum extent practicable” before retaining a

prime contractor to develop a custom-built product. 10

U.S.C. §3453(b)(1). The statute governs every stage of

the procurement process and applies equally to prime

contracts and subcontracts. See §3453(b)(2).

•

It directs agencies to “ensure” that “prime contractors and subcontractors at all levels under

the agency” prioritize commercial options, even

for “components of items supplied to the

agency” by the prime contractor. Id.

•

It orders agencies to take appropriate steps “to

ensure that any prime contractor” who receives

a non-commercial contract worth more than $5

million conducts “market research as may be

necessary” to satisfy the commercial preference

mandate in §3453(b)(2) when issuing subcontracts. Id. §3453(c)(5).

•

Finally, FASA guarantees “offerors of commercial services [and] commercial products” the

right “to compete in any procurement to fill [an

agency’s] requirements.” Id. §3453(a)(3) (emphasis added). The continuing legal obligations

FASA imposes on agencies and primes—and

the corresponding rights it vests in commercial

companies—give teeth to the law’s goals of

maximizing quality and competition across the

entire procurement process.

FASA marked a major congressional shift in federal contracting law, but it has faced sustained bureaucratic resistance. It is a truism in the government-contracting industry that contracting officers

“lack adequate incentive or ability to police contractors’ development decisions, whether from inertia, industry capture, lack of expertise or exposure to private

sector innovation, or some combination of the foregoing.” Pet.Br.34.

Congress cannot monitor every suboptimal agency

decision. Thus, commercial offerors are often forced to

challenge contracting officers’ noncompliance through

bid protests submitted at the agency level; lodged with

the Government Accountability Office; or brought via

federal lawsuits. E.g., Palantir, 904 F.3d at 983.

One of the principal mechanisms for enforcing

FASA is by filing a bid protest in the Court of Federal

Claims under §1491(b)(1), which permits “interested

parties” to challenge an agency’s failure to comply

with the statute’s commercial-preference requirements. In the FASA context, Percipient and other

companies who provide commercial products that

meet the government’s needs are plainly “interested

parties” at both the prime-contract and subcontract

stages. Section 1491(b)(1) is designed to ensure a remedy when an agency’s illegal activity prevents such

companies from bidding on the prime contract or being considered for subcontractor roles for which they

have a legal right to compete.

But the Federal Circuit held that a party who alleges that an agency violated FASA by excluding it

from consideration for a subcontract is not an “interested party”—and therefore cannot vindicate its

rights under §1491—unless it was “an actual or prospective bidder” on the prime contract for which it was

ineligible or from which it was excluded. App.12.

In so holding, the majority effectively erased the

parts of FASA that apply only after a prime contract

has been awarded, such as the requirement that

prime contractors conduct market research to identify

available commercial alternatives. See 10 U.S.C.

§§3453(b)(2), (c)(5). The majority’s decision prevents

the precise companies FASA was designed to protect

from vindicating the rights the law affords them.

B. The decision below will deprive the military and intelligence agencies of cuttingedge technologies.

Without enforcement by “interested parties,” contracting officers will likely revert to the wasteful costplus approaches of decades past. That means cutting

commercial technology companies out of acquisitions.

See Pet.34.

Most of the companies who sell state-of-the-art

commercial software solutions are nontraditional disruptors who do not operate under the cost-plus model

(and often bid on subcontracts as a result). Under the

Federal Circuit’s decision, those innovators are now at

the mercy of legacy prime contractors with entrenched

interests. They will have no recourse if established incumbents ignore FASA by excluding commercial products from consideration for subcontracts—or engage

in self-dealing by awarding themselves subcontracts

to duplicate products already available in the market.

This case is a perfect example. CACI simply

awarded the subcontract to itself. E.g., App.53-54.

Neither CACI nor the Government has claimed at any

point in this litigation that the procurement challenged by Percipient was FASA-compliant. They

simply argue that Percipient lacks standing to challenge it.

All this means that the national security community will lose access to groundbreaking capabilities.

The legacy prime contractors who operate on a costplus basis are not incentivized to match the cutting-

edge technologies developed and refined by commercial companies and stress-tested by the market. As a

result, America’s warfighters will be left with inferior

products.

Although war does not usually evoke images of

computer engineers, software is a crucial tool for

achieving asymmetric advantages in the modern battlespace. America’s “competitive advantage, today and

tomorrow, is reliant on strategic insight, proactive innovation, and effective technology integration enabled

through software capabilities.” U.S. Dep’t of Defense,

Software Modernization Strategy ii (Feb. 1, 2022),

bit.ly/4nrlALD. With the rise of artificial intelligence

and autonomous vehicles, the military assesses that

its software capabilities—or lack thereof—will “be the

differentiator in the continued defense of our nation.”

Id. at 10.

“The war in Ukraine has demonstrated how a

combination of improvements in remote sensing, automation, and data integration can enable military

forces to better detect, locate, and track their adversaries,” giving “an advantage to whichever side can

most quickly collect information and disseminate it to

shooters on the battlefield.” Hvizda, et al., supra, at

36. Small drones with explosive payloads and firstperson viewer optics livestream their feeds to mobile

phones and tablets. There, software programs fuse the

data from various drone into a single platform and

identify targets for attack. See id. at 15-18. “Constant

adaptation [is] required” as each side’s tactics continually evolve. Id. at 17.

Based on its observations of the conflict, the U.S.

Army has now set a goal of “[enabling] AI-driven command and control at Theater, Corps and Division

headquarters by 2027.” Memorandum from Sec’y of

Def. to Senior Pentagon Leadership, Army Transformation and Acquisition Reform (April 30, 2025),

bit.ly/3L6H17i. Time is of the essence.

Congress recognized that commercial software developers supply relevant and tested technologies at a

speed that cost-plus contracting cannot match. That is

why it added software-specific requirements to FASA

in 2008 for the military. The 2008 FASA amendment

requires Pentagon contracting officers to “identify and

evaluate” any “opportunities for the use of commercial

computer software and other non-developmental software” at “all stages of the acquisition process.” Pub. L.

110-417, §803(a), 122 Stat. 4356, 4519 (2008). That

mandate has since been extended by regulation to all

other federal agencies. See 48 C.F.R. §212.212(1).

If our military is to win future wars, software

products must get “to the warfighter at the speed of

relevance.” Warren Katz, The ‘Cost Plus’ Boondoggle

That Hobbles U.S. Defense, Breaking Defense (Oct.

10, 2024), perma.cc/3JKN-6XRH. Yet under the current pace of advancement in software and artificial intelligence, products developed by prime contractors

under the cost-plus model are already obsolete by the

time they arrive in the hands of their end users. See,

e.g., Ashley Roque, Frustrations Over Army’s Robotic

Combat Vehicle Autonomy, Acquisition Approach,

Breaking Defense, (July 22, 2024) perma.cc/3PUUUBEK (General stating that new autonomous vehicles

are not “as autonomous or as capable as we want”).

Palantir, by contrast, pushes an average of 90,000

software upgrades per week to its customers, many of

whom are federal agencies.

C. The decision below will strangle innovation in the defense technology industry

at a critical juncture.

Without the threat of FASA challenges lurking in

the background, many contracting officers will take

the easy way out by defaulting to cost-plus contracting

with the legacy prime contractors. See Pet.Br.21; Palantir, 904 F.3d at 986-88.

Although the consequences of cost-plus contracting “have customarily been measured in both time and

money, they also burden technological innovation.”

Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws I-5 (Jan. 1991). Concerns

about innovation were one driver behind FASA’s enactment. See id. (noting “growing concern among lawmakers and procurement experts who worried about

the system’s ability to respond to future scientific

challenges”). The decision below—that contractors

have substantive rights under FASA, but they cannot

enforce them—will undermine innovation in the defense sector in two ways.

First, the Federal Circuit’s rule will drive leading

technology companies out of the industry. Promising

start-ups will conclude that the barriers to entry in

the defense contracting space are too high, or that the

tradeoffs are not worth it. And larger contractors who

have a foot in both the commercial space and the defense industry may opt out from defense work entirely

because the opportunities in the private sector vastly

outweigh those in the government domain. Such an

outcome “will ensure DoD loses the innovation war

with China.” William Greenwalt, Congress Must

Again Strengthen the Federal Acquisition Streamlining Act, Am. Enter. Inst. (Nov. 8, 2024),

bit.ly/49oMEHT.

Second, the decision will deter the remaining commercial software innovators from investing in new

products at any stage of the procurement process. As

for the pre-award stage, why develop something that

one cannot bring to market? And once procurement officials assign a cost-plus contract to a prime, they have

essentially “lock[ed] themselves into purchasing that

product only from that contractor, [and] no private

company would invest out of their own pocket in a superior product, as there is no way for the [government]

to switch” to it. Katz, supra.

D. The decision below will increase delays

and cost-overruns.

The erosion of FASA enforcement will lead to extended timelines for inferior products at greater expense. Because the government bears all risk under

the cost-plus approach, contractors have no incentive

to keep costs down. Moreover, a contractor’s fixed

profit does not increase for completing work under

budget, so a cost-plus contractor can increase a project’s budget by taking on additional overhead or labor

without affecting its profit. See 48 C.F.R. §16.306(a)(b).

Traditional contractors that win cost-plus contracts have no incentive to complete the job ahead of

schedule, either. The government reimburses contractors for the costs of their employees’ salaries as long

as the contract remains open, so finishing before the

deadline leads to a large jump in a prime’s expenses.

See 48 C.F.R. §31.205-6(a). And because the contractor bears no financial risk from delays or cost overruns, see 48 C.F.R. §16.306, but does bear a reputational risk if the completed project cannot be completed or is deemed substandard, the contractor’s interest is to double (and triple) down on failure until

the project is technically “complete.”

For example, in 2011, NASA estimated that it

would cost at least $4 billion over a decade to develop

a reusable launch rocket for its new Space Launch

System. NASA rolled out SLS through a series of costplus contracts with traditional prime contractors.

Over the next 11 years, SLS achieved only one flight:

an uncrewed, single-use test in 2022 completed “after

launch delays of nearly 4 years.” NASA Inspector General, IG 24-001, NASA’s Transition of the Space

Launch System to a Commercial Services Contract 3

(Oct. 12, 2023). The price tag had ballooned to $23.8

billion. Id.

Meanwhile, SpaceX built a better rocket—in less

time—for $400 million. See Shyam Sankar, The Defense Reformation, perma.cc/K5ZM-W32A. A 2023

NASA report blamed the debacle partly on the use of

“cost-reimbursable contracts,” and recommended a

“pivot to other commercial alternatives” to “capitalize

on multiple technological innovations, making them

lighter, cheaper, and reusable.” NASA IG 24-001, supra, at 12 & n.18; id. at 24. NASA now contracts with

SpaceX.

This example highlights the compounding advantages of commercial innovation: SpaceX’s Starship

Heavy will be 1% of the cost of the Falcon 9, and its

cost-savings will be 1,000 times greater than the progeny of the cost-plus approaches. See Sankar, supra.

SpaceX costs less than $100 million per launch, versus

more than $2 billion per launch under the cost-plus

programs. See NASA IG 24-001, supra, at 12.

The pattern repeats itself whenever agencies are

allowed to skirt their burdens under FASA. A Senate

committee investigating design failures in the Air

Force’s new Expeditionary Combat Support System

(“ECSS”) determined that the service ignored mandatory commercial procurement practices, leading to “a

waste of $1.1 billion in taxpayer money, a loss of eight

years of effort, [and] the same old inadequate logistics

system far inferior to the promise of ECSS.” Permanent Subcomm. on Investigations, S. Comm. on Homeland Sec. & Governmental Affs., The Air Force’s Expeditionary Combat Support System (ECCS) 1 (July 7,

2014), perma.cc/JUR8-78AZ.

Simply put, “[c]ost-plus contracting makes the nation dumber, slower, and poorer.” Sankar, supra. Congress knew this and passed FASA to stop it. But by

disarming FASA’s carefully considered enforcement

mechanisms, the decision below throws open the

floodgates to flagrant violations of the law.

II. The Federal Circuit’s decision is grievously

wrong.

A statute must be interpreted according to its “ordinary, contemporary, common meaning.” Sandifer v.

United States Steel Corp., 571 U.S. 220, 227 (2014).

Yet the majority interpreted §1491(b)(1) not based on

the statute’s text, but on what it believed to be the

general intent of the whole field of bid protest law. But

see 10 U.S.C. §§3453(a)(3), (b).

Rather than beginning with the ordinary meaning

of “interested party,” the majority conducted an indepth survey of the history of bid protest legislation to

divine the spirit of the term, which it then applied to

Percipient’s claim. But cf. Wisconsin Cent. Ltd v.

United States, 585 U.S. 274, 282 (2018) (“It is not our

function ‘to rewrite a constitutionally valid statutory

text under the banner of speculation about what Congress might have’ intended.”); App.6-12; supra at 6-10.

That was a legal error—one that led the majority

to announce a rule for bid-protest standing that bears

no connection to the text, structure, and purpose of the

statute that created it.

A. The Federal Circuit failed to give effect

to the plain text of §1491.

Section 1491(b)(1) states that the Court of Federal

Claims “shall have jurisdiction” over “an action by an

interested party objecting to a solicitation by a Federal agency for bids or proposals for a proposed 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.” 28 U.S.C. §1491(b)(1).

Breaking that down, §1491(b)(1) states that the

Court of Federal Claims “shall have jurisdiction” over

three types of “action[s]”:

•

First, the court has jurisdiction over actions

challenging an agency’s solicitation for bids on

a contract.

•

Second, the court has jurisdiction over actions

challenging an award or proposed award of a

contract.

•

Third, the court has jurisdiction over actions

raising “any alleged violation of statute or regulation in connection with a procurement or

proposed procurement.” Id.

Each of these three types of challenges may be

brought by an “interested party.” Id. Section 1491

does not define that term; thus, it must be interpreted

“according to its ‘ordinary, contemporary, common

meaning.’” Sw. Airlines Co. v. Saxon, 596 U.S. 450,

455 (2022).

Applying Federal Circuit precedent, the dissent

below correctly recognized that the term “interested

party” means an entity “with a direct economic interest that would be affected by” the specific action challenged under §1491. App.37-38 (cleaned up). This interpretation of “interested party” is consistent with

this Court’s previous interpretation of “party in inter-

est.” See Truck Ins. Exch., 602 U.S. at 278 (citing Webster’s 2d edition and concluding “[t]he plain meaning

of the phrase thus refers to entities that are potentially concerned with or affected by a proceeding”).

Thus, as even the Government concedes, see

App.39, the standard for “an interested party” under

§1491(b)(1) is informed by the nature of the government action the party challenges:

First, if a “solicitation by a Federal agency for

bids or proposals for a proposed contract” employs an

improper evaluation scheme, then an “interested

party” is a contractor whose bid will be subjected to

the unfair criteria laid out in the solicitation.

§1491(b)(1). That is because its direct economic interest was affected by the improper solicitation. Cf. Savantage Fin. Servs., Inc. v. United States, 595 F.3d

1282, 1286 (Fed. Cir. 2010).

Second, if an agency announces “a proposed

award or the award of a contract” to a bidder who was

not entitled to it under the solicitation, then an “interested party” is a contractor who properly bid on the

contract but was passed over for the ineligible

awardee. §1491(b)(1). Its direct economic interest was

affected by the improper award. Cf. Centech Grp., Inc.

v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009).

Third—and as relevant here—if an agency is in

“violation of statute or regulation in connection with a

procurement,” then an “interested party” is a contractor whose direct economic interest was affected by the

legal or regulatory violation. §1491(b)(1); see App.42.

Percipient plainly satisfies that standard. Its commercial product satisfied the needs of the subcontract—

yet the Government violated FASA by failing to ensure that CACI considered Percipient’s product after

the agency became aware of it. See 10 U.S.C.

§§3453(b)(2), (c). Percipient is thus an “interested

party” under a straightforward application of the text

of §1491(b)(1).

The majority reasoned that “Congress was not

writing on a blank slate when it enacted 1491(b)(1),

but against the backdrop of decades of government

contract law.” App.19 (cleaned up). Because Congress

defined “interested party” in the Competition in Contracting Act (“CICA”), the majority believed, the term

must have the same meaning in §1491. App.19 (quoting George v. McDonough, 596 U.S. 740, 746 (2022)).

But the so-called “old soil” doctrine applies only

when the plain meaning of a statute is unclear—and

the statute uses “a term of art” that is “obviously

transplanted” from another statute. McDonough, 596

U.S. at 746. That doctrine is inapplicable here. For

starters, the plain meaning of §1491(b)(1) is clear. Supra at 3-4. Moreover, Congress did not “obviously

transplant[ ]” CICA’s definition of “interested party”

into FASA. As the dissent noted, CICA “does not even

include the subject matter of interest at issue here,”

App.37, because CICA and §1491 were enacted

against “different regulatory backdrops,” Monsalvo v.

Bondi, 145 S. Ct. 1232, 1245 n.5 (2025). CICA became

law in 1984 to provide for administrative challenges

to solicitations and awards. It does not contain

§1491(b)(1)’s expansive language authorizing challenges to any “violation of statute or regulation in connection with a procurement.” Section 1491, on the

other hand, expressly authorizes “interested parties”

to challenge legal violations in the procurement process. And it was passed on the heels of FASA, which

“is itself a procurement statute.” Cf. Monsalvo, 145 S.

Ct. at 1245 n.5 (the same phrase used in “different

statutes passed at different times against different

regulatory backdrops may bear different meanings”).

Furthermore, Congress defined “interested party”

as an actual or prospective bidder in CICA—but did

not do so in §1491—which cuts against the majority’s

conclusion. That is because Congress expressly incorporated CICA into a separate provision of §1491 in

2008, when it added section (b)(5): “If an interested

party who is a member of the private sector commences an action described in [(b)(1)], … then an interested party described in [CICA] shall be entitled to

intervene in that action.” If “interested party” in

§1491(b)(1) already mirrored CICA’s definition, Congress would not have needed to incorporate CICA’s

definition by reference in §1491(b)(5). It would have

simply said “an interested party can intervene in a

(b)(1) action brought by another interested party.”

Section 1491(b)(5) underscores that Congress’s earlier

omission of CICA in §1491(b)(1) was intentional. Cf.

Wisconsin Cent. Ltd, 585 U.S. at 279 (“We usually

‘presume differences in language like this convey differences in meaning.’”).

B. The decision below is incompatible with

the structure and purpose of §1491(b)(1).

Under the majority’s interpretation, the only parties eligible to challenge “a violation of statute or regulation in connection with a procurement” are the

same ones already eligible to bring pre- and postaward challenges. Put differently, the only parties

who have standing to bring a challenge under prong 3

are ones who would already have standing under

prong 1 or 2. Supra at 20-21. That reading “render[s]

superfluous” the final clause of §1491(b)(1). Freytag v.

Comm’r, 501 U.S. 868, 877 (1991); id. (“If the cases

that special trial judges may hear, but not decide, under subsection (b)(4) are limited to the same kind of

cases they could hear and decide under the three preceding subsections, then subsection (b)(4) would be superfluous.”).

The majority opinion also failed to “exhaust ‘all

the textual and structural clues’ bearing on th[e]

meaning” of an interested party under §1491. NizChavez v. Garland, 593 U.S. 155, 160 (2021). Section

1491 expressly adopts the APA standard of review, see

§1491(b)(4). And its purpose was to make the Court of

Federal Claims’s jurisdiction coextensive with the bidprotest jurisdiction exercised by district courts (which

includes APA claims). Yet despite its extensive focus

on legislative history, the majority never grappled

with the parallels between §1491(b)(1)’s language authorizing “interested parties” to bring claims for statutory violations and the APA’s language authorizing

persons “aggrieved” to bring claims for statutory violations. Compare §1491(b)(1), with 5 U.S.C. §702.

The majority’s approach is irreconcilable with the

purpose of §1491(b)(1) as amended by the Administrative Disputes Resolution Act. Congress passed the

ADRA to give the Court of Federal Claims “the full

range of procurement protest cases previously subject

to review” only in the federal district courts. App.43;

see §1491(b)(1). By then, it was settled law that district courts had jurisdiction to entertain bid protests

brought under the APA. See, e.g., Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859, 869 (D.C. Cir. 1970).

So it would be anomalous indeed if Congress expressly

vested the Court of Federal Claims with jurisdiction

coextensive with that of the district courts, see

§1491(b)(1)—and specified the APA as the standard of

review, see §1491(b)(4)—but excluded APA-style

claims for violations of law from the scope of the statute sub silentio.

The dissent at the panel stage argued that ruling

for Percipient would open the floodgates to a new

wave of bid protests premised on traditional subcontractor standing theories, see App.117, and members

of the en banc court expressed similar concerns during

oral argument. To the extent those concerns animated

the majority’s opinion, they likewise misunderstand

the structure and purpose of §1491. Percipient’s

standing under §1491(b)(1) flows not from its position

as a subcontractor, but from its unique legal interest

under FASA as a provider of demonstrated commercial products that meet the government’s needs. Being

a subcontractor does not change that or otherwise

strip Percipient’s interest.

Put differently, the relevant distinction is not (as

the majority wrongly believed) whether Percipient

was a potential prime or subcontractor—but whether

its claim was rooted in FASA or not. Cf. Acuity-CHS

Middle E. LLC v. United States, 173 Fed. Cl. 788, 80001 (2024) (rejecting a subcontractor’s standing arguments for a non-FASA claim while the Percipient

panel decision stood). Again, all parties concede that

standing under §1491(b)(1) hinges on what type of

claim a party brings. App.39.

C. The Federal Circuit improperly prioritized legislative history over the statute’s text.

This Court has repeatedly admonished that “the

authoritative statement is the statutory text, not the

legislative history.” Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 568 (2005). But rather than

interpreting §1491’s text, the majority reviewed three

decades of “the history of bid protest cases and prior

statutes.” App.19; see App.42-43 (“The majority further errs by prioritizing legislative history of various

statutes and ignoring the language of §1491(b)(1).”);

cf. Epic Systems Corp. v. Lewis, 584 U.S. 497, 523

(2018) (The majority “rests its interpretation on legislative history. But legislative history is not the law.”).

The majority did not even mention the relevant

text until page 14 of its opinion and did not analyze its

meaning until page 18. Even then, the majority lingered on the text only long enough to assert that it

aligned with the majority’s reading of the legislative

history. Preoccupied with the legislative history of the

broader field of bid protest statutes, the majority advanced an inflexible interpretation of §1491(b)(1) that

no party requested. See App.39 (“[E]ven the Government agrees that who qualifies as an interested party

depends on the type of objection made under

§1491(b)(1).”).

In a similar manner, the majority broadly stated

that no statute underlying Percipient’s claim could

provide a basis for subcontractor standing. App.31-32.

Instead of cross-checking that assertion against the

text of FASA—the law most relevant to the inquiry,

which guarantees commercial offerors the opportunity

to compete “in any procurement,” 10 U.S.C.

§§3453(a)(3), (b)—the majority invoked “the history of

both CICA and the Brooks Act” for the proposition

“that Congress explicitly considered expanding standing to encompass subcontractors and expressly declined to do so.” App.34.

That reasoning is flawed multiple times over. If

contextual evidence is relevant, it should start with

what Congress did or did not consider in FASA. That

means looking to FASA and its legislative history

first—not indulging a flight of fancy through the majority’s cherrypicked laws. In an implicit recognition

of this tenuous connection, the majority made no attempt to connect the legislative history of CICA and

the (essentially irrelevant) Brooks Act with FASA. See

App.34. That silence is deafening.

***

At bottom, this case is “straight-forward.” App.45.

FASA requires federal agencies to ensure that commercial products are considered and prioritized at

both the prime-contract and subcontract stages. 10

U.S.C. §§3453(b)(2), (c)(5) And it guarantees companies “an opportunity to compete in any procurement”

where commercial products can fulfill the government’s needs. Id. §3453(a)(3) (emphasis added). Section 1491, in turn, allows an “interested party” to sue

for “any alleged violation of statute or regulation in

connection with a procurement.” 28 U.S.C. §1491(b)(1)

(emphasis added).

Companies providing commercial items are

plainly “interested parties” under §1491(b)(1) whenever an agency violates the rights FASA guarantees

them in any stage of the procurement cycle—including when bidding as a subcontractor. Thus, such subcontractors have standing to object to FASA violations

in the Court of Federal Claims, and the Federal Circuit erred significantly by holding otherwise.

CONCLUSION

This Court should grant certiorari.

Zachary A. Austin

Samantha L. Clark

Jason W. Moy

PALANTIR TECHNOLOGIES

INC.

1025 Thomas Jefferson St.

NW, Ste. 600

Washington, DC 20007

(703) 270-3135

zaustin@palantir.com

Jeffrey M. Harris

Counsel of Record

J. Michael Connolly

James F. Hasson

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

jeff@consovoymccarthy.com

Counsel for Palantir

Technologies Inc.

Counsel for Palantir

Technologies Inc.

Ian Shannon

EIGHT PARTNERS VC, LLC

501 2nd St., Ste. 300

San Francisco, CA 94107

Counsel for Eight Partners

VC, LLC and Joe Lonsdale

November 7, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.