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

No. 25-428

In the

Supreme Court of the United States

PERCIPIENT.AI, INC.,

Petitioner,

v.

UNITED STATES, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

BRIEF AMICI CURIAE OF FOUNDATION

FOR AMERICAN INNOVATION, THE ALLIANCE

FOR COMMERCIAL TECHNOLOGY IN

GOVERNMENT, SHIELD CAPITAL,

SNOWFLAKE INC., AND COMMERCIAL

SUPPLIERS IN SUPPORT OF PETITIONER

Erika Payne

Snowflake Inc.

125 Constitution Drive

Menlo Park, CA 94025

Counsel for Snowflake, Inc.

and Sridhar Ramaswamy

Tim Hwang

Counsel of Record

Foundation for

American Innovation

2443 Fillmore Street,

#380-3386

San Francisco, CA 94115

(973) 960-4955

tim.hwang@thefai.org

Counsel for Amici Curiae

131670

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

FORTY YEARS OF CONGRESSIONAL

REFORM HAVE FAILED DUE TO A

SYSTEMIC ENFORCEMENT GAP THAT

THREATENS NATIONAL SECURITY . . . . . 4

A. Congress Envisioned a Procurement

Revolution That Would Harness

Commercial Innovation for National

Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Agencies Gutted That Vision Through

Reinterpretation And Regulatory

Accretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

C. The Section 809 Panel Documented How

Far Agencies Had Strayed From The

Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. The Empir ical Consequences Of

Nonenforcement Have Been Stark . . . . . . 12

ii

Table of Contents

Page

D1. S k ipp i n g M a rket R e s e a r c h

Adds Years of Delay and Billions

in Cost . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

D2. Uncontrolled Clause Proliferation

Drove Out Thousands of Vendors . . . . 16

E. The En Banc Holding Would Remove the

Last Available Brake on Nonenforcement . . 18

II. THE SUPREME COURT SHOULD

GRANT CERTIORARI TO ADDRESS

ERROR ON AN IMPORTANT FEDERAL

QUESTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

A. Textual Canons Strongly Suggest

Differential Standing for Prong 3

Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

B. “Floodgate” Concerns Are Speculative . . 24

C. The Issues at Stake Implicate Critical

Federal Questions . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

APPENDIX — LIST OF AMICI CURIAE . . . . . . . 1a

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Analytical Graphics, Inc. v. United States,

135 Fed. Cl. 378 (2017) . . . . . . . . . . . . . . . . . . . . . . . . 12

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Kingdomware Techs., Inc. v. United States,

579 U.S. 162 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Palantir USG, Inc v. United States,

904 F.3d 980 (Fed. Cir. 2018) . . . . . . . . . . . . . . . . . 8, 19

United States v. Gonzales,

520 U.S. 1 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Statutes and Rules

10 U.S.C. § 2377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 12

10 U.S.C. § 3453 . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 17, 20

10 U.S.C. § 3453(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 U.S.C. § 3453(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 U.S.C. § 3453(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 U.S.C. § 3453(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

iv

Cited Authorities

Page

10 U.S.C. § 3453(c)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

10 U.S.C. § 3705(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

28 U.S.C. § 1491(b) . . . . . . . . . . . . . . . . . . . . . . 1, 19, 20, 22

28 U.S.C. § 1491(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

38 U.S.C. § 8127(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

41 U.S.C. § 103(1)(A)–(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 9

41 U.S.C. § 3503 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

48 C.F.R. § 2.101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

48 C.F.R. § 15.403-1(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

48 C.F.R. § 212.102(a)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . 9

48 C.F.R. § 252.204-7012(b)(2) . . . . . . . . . . . . . . . . . . . . 10

48 C.F.R. § 252.204-7012(c)(1)(ii) . . . . . . . . . . . . . . . . . . 10

74 Fed. Reg. 34,270 (July 15, 2009) . . . . . . . . . . . . . . . . . . 7

Pub. L. No. 98-369, Div. B, Title VII, §§ 2701–2753,

98 Stat. 1175 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Pub. L. No. 114-92 § 844(a), 129 Stat. 915 (2015) . . . . . . 7

Pub. L. No. 114-328 § 871, 130 Stat. 2307 (2016) . . . . . . 7

v

Cited Authorities

Page

Pub. L. No. 115-232 § 836(d)(3), 132 Stat. 1866 (2018) . 7

Pub. L. No. 116-92 § 818(a), 133 Stat. 1488 (2019) . . . . . 7

Pub. L. No. 116-283 § 1821, 134 Stat. 4195 (2021) . . . . . 7

Pub. L. No. 118-159 § 834, 138 Stat. 1986 (2024) . . . . . . 7

Administrative Dispute Resolution Act . . . . . . . . . . . . .26

Competition in Contracting Act . . . . . . . . . . . . . . . . . 5, 22

National Defense Authorization Act . . . . . . . . . . . . . . . . 7

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Tucker Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 25

Other Authorities

Advisory Panel on Streamlining & Codifying

Acquisition Regulations (Section 809 Panel),

Report of the Advisory Panel on Streamlining

and Codifying Acquisition Regulations,

vol. 1 of 3 (Jan. 2018), https://discover.dtic.

mil /w p -content /uploads/809 -Panel-2019/

Volume1/Sec809Panel_Vol1-Report_Jan2018.pdf . . 11

Ben, Complete DJI Drone History & Release

Date Timeline (2013–2025), Gadgets N Tech

(Oct. 14, 2025), https://gadgets-n-tech.com/

complete-dji-drone-histor y-releasedatetimeline/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

vi

Cited Authorities

Page

Alec C. Blivas, Brenen Tidwell & Morgan Dwyer,

Cycle Times and Cycles of Acquisition

Refo r m , C SI S Br ie fs (A ug. 5 , 2 0 2 0),

https://w w w.csis.org/analysis/cycle-timesand-cycles-acquisition-reform . . . . . . . . . . . . . . . . . . 12

Tajha Chappel let -La n ier, Ar my, Defense

Inn o va ti o n Unit Mo ve Fo r war d With

Surveillance Drone Project, FedScoop (Apr.

29, 2019), https://fedscoop.com/army-diushort-range-reconnaissance-drones-award/

(reporting DIU solicitation issued Nov. 2018) . . . . . 13

Coalition for Gov’t Procurement, Market Report: The

State of the Federal Market (May 2024), https://the

cgp.org/images/2024/06/23-Market-Report-2.pdf . . . 21

Cong. Research Serv., F-35 Joint Strike Fighter (JSF)

Program: Background and Issues for Congress

(Dec. 22, 2009), https://www.everycrsreport.com/

files/20091222_RL30563_4e4c38f6c1371c17b92

fa2c7cc25a9c2aeae8df6.pdf . . . . . . . . . . . . . . . . . . . . 15

Ctr. for Strategic & Int’l Stud., How Ukraine

Rebuilt Its Military Acquisition System

Around Commercial Technology (Jan. 2025),

https://csis-website-prod.s3.amazonaws.

com/s3fs-public/2025 - 01/250113_Bondar_

Ukraine_Acquisition.pdf . . . . . . . . . . . . . . . . . . . . . . 16

vii

Cited Authorities

Page

Defense Acquisition Regulations Sys., Defense

Federal Acquisition Regulation Supplement;

Limitation on Procurements on Behalf

of the Dep’t of Def., 74 Fed. Reg. 34,270

(July 15, 2009), https://w w w.govinfo.gov/

content/pkg/FR-2009-07-15/pdf/E9-16668.pdf . . . . . 7

Defense Contract Mgmt. Agency, DCMA CIG

In d u s t r y D a y ( Fe b. 2 0 , 2 0 2 0) (s l i de

deck), https://w w w.dcma.mil / Portals/31/

D o c u ment s /CIG / D CM A%2 0 CIG %2 0

I n d u s t r y % 2 0 D ay % 2 0 s l i d e s % 2 0 2 0 % 2 0

February%202020.pdf . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dep’t of Def., Class Deviation 2024-O0013

(May 2, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

DFARS 212.102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

DFARS 252.204-7012 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Yuliia Dysa & Olena Harmash, Zelenskiy Woos

US Businesses, Seeks to Grow Ukraine’s Drone

Industry, Reuters (Sept. 25, 2025), https://

www.reuters.com/business/zelenskiy-woosus-businesses-seeks-grow-ukraines-droneindustry-2025-09-25/ . . . . . . . . . . . . . . . . . . . . . . . . . 16

viii

Cited Authorities

Page

Exec. Order No. 14,271, 90 Fed. Reg. 16,433

(Apr. 18, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Federal Acquisition Regulation; Acquisition

of Commercial Items, 60 Fed. Reg. 48,231

(Sept. 18, 1995), https://w w w.govinfo.gov/

content/pkg/FR-1995-09-18/pdf/95-22778.

pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Federa l Acqu isit ion Reg u lat ion; Pa r t 15

R ew r it e — Cont r a c t i ng by Negot i at ion

& Competitive Range Determination, 62

Fed. Reg. 51,224 (Sept. 30, 1997), https://

w w w.gov i n fo.gov/cont ent /pkg / FR-19 9709-30/pdf/97-25666.pdf . . . . . . . . . . . . . . . . . . . . . . . 8-9

Grace Commission Recommendations: Hearing

Before the S. Comm. on Finance, 98th Cong.,

S. Hrg. No. 98‑744 (1984), https://www.finance.

senate.gov/imo/media/doc/HRG98-744.pdf . . . . . . . . 5

J o h n E . Ja c k s o n , T h e $ 4 3 6 H a m m e r :

A Laughing Matter?, Proceedings (U.S.

Nava l Inst .) (Dec. 19 8 5), https: // w w w.

u sn i .or g / m a g a z i ne s / pr o c e e d i ng s / 19 8 5 /

december/4 36 -ha m mer -laugh i ngmatter. U.S. Naval Institute . . . . . . . . . . . . . . . . . . . . 5

ix

Cited Authorities

Page

List of Starlink and Starshield launches,

Wikipedia (last v isited Oct. 31,

2 0 2 5 ), ht t p s : //e n .w i k i p e d i a . o r g / w i k i /

List_of_Starlink_and_Starshield_launches . . . 13, 14

Adam Mazmanian, DoD Plans $1.4B SoleSource Extension for Leidos on Health

Ca re Record, Ne x tgov/ FC W (Oc t . 2 3 ,

2024), https://www.nextgov.com/acquisition/

2 0 2 4 / 10 /d o d - p l a n s -14 b - s o l e - s o u r c e extension-leidos-health-care-record/400501/ . . . . . 15

Nor t h rop Gr u m ma n, U. S . Nav y Aw ar d s

$1.16 Billi o n BA MS UA S Co ntr a c t t o

No r th r o p G r u m m a n (A pr. 2 2 , 2 0 0 8),

https://investor.nor thropg r umman.com /

news-releases /news-release - det a i ls /usnavy-awards-116-billion-bams-uas-contractnorthrop-grumman (last visited Nov. 4, 2025) . . . . 13

OECD, OECD Main Science and Technology

Indicators: Highlights from the March

2024 Edition (Mar. 2024), https://www.oecd.

org /cont ent /dam /oecd /en /data /datasets /

main-science-and-technolog y-indicators/

msti-highlights-march-2024.pdf . . . . . . . . . . . . . . . . 17

Shyam Sankar, The Defence Reformation: 18

Theses for the Resurrection of the American

Industrial Base, 18Theses.com (Oct. 31, 2024),

https://www.18theses.com . . . . . . . . . . . . . . . . . . . . . 26

x

Cited Authorities

Page

Section 809 Panel, Vol. 1 Report (Jan. 2018),

discover,dtic.mil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Jared Serbu, Section 809 panel’s final report

prescribes “revolutionary” changes to DoD

buying, Federal News Network (Jan. 15, 2019),

https://federalnewsnetwork.com/acquisitionpolicy/2 019/01/section- 8 0 9 -panels-f inalreport-prescribes-revolutionary-changes-todod-buying/ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (Thomson/

West 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Triad Isotopes, Inc., B-411360, 2015 CPD ¶ 220

(Comp. Gen. July 16, 2015) . . . . . . . . . . . . . . . . . . . . . 19

Sa rah T reuha f t et a l., Fewer and Fewer

Small Businesses A re Getting Federal

Contracts, National Equity Atlas (Sept.

28, 2021), https://nationalequityatlas.org/

federalcontracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Army, New Short Range Reconnaissance

Capability Begins Fielding to Soldiers

(O c t . 1 2 , 2 0 2 2 ) , h t t p s : / / w w w. a r m y.

m i l /a r t i c l e / 2 6 10 6 3 / n e w_ s ho r t _ r a n g e _

reconnaissance_capability_begins_fielding_to_

soldiers (last visited Nov. 4, 2025) . . . . . . . . . . . . . . . 13

xi

Cited Authorities

Page

U.S. Dep’t of Def., Performance and Accountability

Report, Fiscal Year 2003 (Dec. 23, 2003), https://

comptroller.war.gov/Portals/45/Documents/afr/

QQfy2003/00_Entire_Document.pdf . . . . . . . . . . . . 14

U. S. Dep’t of Def., State of Competition

within the Defense Industrial Base (Feb.

2 0 2 2), ht tp s: //med i a .defense.gov/ 2 0 2 2 /

feb/15/2002939087/-1/-1/1/state-of-competitionwithin-the-defense-industrial-base.pdf . . . . . . . . . . 17

U. S . G ov ’t Accou nt abi l ity Of f., Co ntr a c t

Management: Minimal Compliance with

New Safeguards for Time‑and‑Materials

Contracts for Commercial Services and

Safeguards Have Not Been Applied to GSA

Schedules Program, GAO‑ 09‑579 (2009),

https://www.gao.gov/assets/gao-09-579.pdf . . . . . . . 10

U.S. Gov’t Accountability Off ice, Defense

Acquisition Reform: Persistent Challenges

Require New Iterative Approaches to Delivering

Capability with Speed (June 11, 2025),

https://www.gao.gov/assets/880/879068.pdf . . . . . . 14

U. S . G o v ’ t A c c o u nt a b i l i t y O f f i c e , F- 3 5

Joint Strike Fighter: Actions Needed to

Ad dress Late Deliver ies an d Imp ro ve

Future Devel o p m ent (S ept . 2 0 2 5),

https://www.gao.gov/assets/gao-25-107632.pdf . . . . 15

xii

Cited Authorities

Page

U.S. Gov’t Accountability Off., Market Research:

Better Documentation Needed to Inform Future

Procurements at Selected Agencies, GAO‑15‑8

(2014), https://www.gao.gov/assets/gao-15-8.pdf . . 10

U.S. Gov’t Accountability Office, Military

A c q u i s i t i o n s : D OD Is Ta k i n g S t e p s

to Address Challenges Faced by Certain

Companies (July 2017), https://www.gao.gov/

assets/gao-17-644.pdf . . . . . . . . . . . . . . . . . . . . . . . 17-18

U.S. Gov’t Accountability Office, Small Business

Contracting: Actions Needed to Implement

and Monitor DOD’s Small Business Strategy

(Oct. 2021), https://www.gao. https://www.gao.

gov/assets/gao-22-104621.pdf . . . . . . . . . . . . . . . . . 16-17

U.S. Navy, NAS Sigonella Welcomes First

MQ-4C Triton (Apr. 1, 2024) (noting VUP19 achieved initial operational capability in

Sept. 2023), https://w w w.navy.mil/ PressOffice/News-Stories/Article/3725909/nassigonella-welcomes-first-mq-4c-triton/ . . . . . . . . . . 13

U. S . Pa c . F leet , F- 35C Achi eves Initi a l

Operational Capability (Feb. 28, 2019),

ht t p s : // w w w. c p f . n a v y. m i l / Ne w s r o o m /

Ne w s /A r t ic le / 2 6 6 4 4 0 5 / f- 3 5 c - a c h ie ve s initial-operational-capability/ . . . . . . . . . . . . . . . . . . 15

xiii

Cited Authorities

Page

Frank Wolfe, Updated Sentinel Acquisition

Strategy in Works; EMD Approval Goal

Early to Mid-2027, Defense Daily (Sept. 23,

2025), https://www.defensedaily.com/updatedsentinel-acquisition-strategy-in-works-emdapproval-goal-early-to-mid-2027/air-force/ . . . . . 14-15

David Wright & Cameron Tracy, Hypersonic

Weapons Are Mediocre. It’s Time to Stop

Wasting Money on Them., Bulletin of the Atomic

Scientists (Mar. 12, 2024), https://thebulletin.

org/2024/03/hypersonic-weapons-are-mediocreits-time-to-stop-wasting-money-on-them/ . . . . . . . . 18

1

INTEREST OF AMICI CURIAE1

Amici are commercial technology suppliers and policy

organizations who study federal procurement. Their work

directly addresses the commercial-item enforcement gap

this case presents. Amici have compiled and submit empirical

evidence that quantifies the prevalence and economic impact

of noncompliance with commercial-item mandates and

demonstrates the importance of this Court’s review.

The Foundation for American Innovation is a think

tank whose mission is to develop technology, talent, and

ideas that support a better, freer, and more abundant

future. Its policy team focuses on issues at the intersection

of innovation, governance, and national security, including

regulatory barriers that prevent cutting-edge technology

from serving government needs.

T he A l l iance for Commercia l Technolog y i n

Government represents commercial technology companies

seeking to supply the Department of Defense. The Alliance

advocates for acquisition regulation changes that enable

commercial suppliers to compete on commercial terms.

Snowf lake, ASTi, Makpar Corporation, Foxtrot

Professional Services, Gallatin AI, and NEXA are

commercial suppliers facing the barriers this case

addresses. Snowflake Inc. is a large, publicly traded

(NYSE: SNOW) cloud-based AI and data company. ASTi

1. No counsel for any party authored this brief in whole or in

part. No party, counsel, or person other than Amici and their counsel

contributed money to fund the preparation and submission of this

brief. Timely notice of the intent to file this amicus brief was provided

to all parties by October 24 via email.

2

has supplied commercial-off-the-shelf communications

and sound systems to military training for 36 years but

faces explicit exclusion from larger DoD deployments

despite evidence its solutions could save hundreds of

millions of taxpayer dollars. Makpar has delivered federal

IT solutions since 2008, earning recognition including Inc.

5000 and federal program awards for cloud engineering,

cybersecurity, and data analytics work. Foxtrot provides

data platform implementations to federal agencies.

Gallatin AI develops AI-native logistics decision-support

software for defense customers. NEXA supplies missiongrade mobile devices plus end-to-end device lifecycle and

managed services to defense customers. All six compete

for government contracts where agencies may impose

requirements that violate commercial-item mandates and

remove their opportunity to fairly compete.

Shield Capital is a venture capital firm investing

across artificial intelligence, autonomy, cybersecurity,

and space. SHIELD supports entrepreneurs addressing

the convergence of commercial technology and national

security.

Amici file this brief because the issues presented

affect their ability to serve the national defense and

because commercial procurement reform is central to

maintaining America’s technological advantage.

SUMMARY OF ARGUMENT

This case asks whether 28 U.S.C. § 1491(b)(1)—which

authorizes suit by an “interested party” over “any alleged

violation of statute or regulation in connection with a

procurement or a proposed procurement”—permits

3

challenges to post-award statutory violations by all parties

with a provable harm derived therefrom. The Federal

Circuit held that it does not, limiting such standing to

actual or prospective bidders, regardless of the fact

that the language of the statute itself contains no such

limitation. This holding should be overturned.

Reviewing the question is critical because of the

widespread noncompliance with Congress’s commercialprocurement mandates. This noncompliance occurs chiefly

after contract award, when the lower court’s holding now

bars most standing. Two common failures show the effects

of noncompliance: first, agencies under-research the market

and default to custom development instead of buying

existing commercial items, adding years to procurement

cycles; second, agencies reimpose government-unique

clauses on purportedly commercial purchases, deterring

entry and causing an exodus among defense suppliers.

Under the lower court’s ruling, these post-award violations

have no private enforcement mechanism.

The legal theory is straightforward and rooted in

text and structure. Congress used “any” and modified the

object with “in connection with a procurement,” language

that reaches the procurement lifecycle—not just the

moment of award. The third prong’s separate reference to

“a procurement” would be surplusage if suits were limited

to bidders contesting a specific award. And Congress

chose “interested party,” not “bidder” or “offeror,” terms

it uses elsewhere when it means to confine standing. The

familiar limits still apply: Article III’s injury, causation,

and redressability; the zone-of-interests test; and the

requirement to plead a concrete statutory violation,

such as inadequate market research or improper clause

4

imposition. Recognizing prong-three standing preserves

those brakes and channels litigation to parties with direct

economic injury who can supply record-based proof.

Certiorari is warranted. The en banc court split

7–4 on a recurring topic central to federal procurement

performance. The Federal Circuit’s exclusive jurisdiction

prevents percolation; in the absence of review, it is the

last word. The issue carries existential consequences for

commercial defense contractors and presents a clean legal

question of statutory interpretation that this Court can

resolve within established standing doctrines. The Court

should grant the petition.

ARGUMENT

I.

FORT Y Y EA R S OF CONGRES SIONA L

REFORM HAVE FAILED DUE TO A SYSTEMIC

ENFORCEMENT GAP THAT THREATENS

NATIONAL SECURITY

The Federal Circuit’s ruling in Percipient.ai, Inc.

v. United States caps off decades of court and agency

decisions undermining Congress’s attempts to bring

commercial vendors into federal procurement. No. 23-1970,

2025 U.S. App. LEXIS 22128 (Fed. Cir. Aug. 28, 2025) (en

banc). For forty years, Congress has commanded agencies

to buy commercial products. For forty years, agencies

have evaded that command. The consequences have been

dire: tens of billions of dollars in waste, thousands of

exited suppliers, and an almost twelve-year major project

acquisition timeline. Now, the Federal Circuit’s opinion is

set to make enforcing these commands nearly impossible

by nontextually limiting prong three standing to those

least likely to challenge violations.

5

A.

Congress Envisioned a Procurement Revolution

That Would Harness Commercial Innovation

for National Defense

Congress launched its first effort at commercialprocurement reform in 1984. The impetus was clear:

government acquisition had become a spectacle of

waste, particularly at the Department of Defense (DoD).

A Navy hammer cost $436; an Air Force plastic cap,

$1100; and a single diode—available elsewhere for four

cents—$110. 2 The 1982 Grace Commission calculated

that DoD procurement savings over only 3 years could

be $7.33 billion. 3 In response to the commission, in July

1984, Congress passed the Competition in Contracting Act

(CICA), with a stated goal of ensuring that government

contracts were awarded “using full and open competition.”

Pub. L. No. 98-369, Div. B, Title VII, §§ 2701–2753, 98

Stat. 1175 (1984).

Despite the passage of CICA, waste continued to

pile up. So, in 1994, Congress passed the most ambitious

procurement reform in modern history, the Federal

Acquisition Streamlining Act. FASA had a simple

premise: the government would buy from the same

companies that serve commercial markets, using the

same streamlined practices that make those markets

2. John E. Jackson, The $436 Hammer: A Laughing Matter?,

Proceedings (U.S. Naval Inst.) (Dec. 1985), https://www.usni.org/

magazines/proceedings/1985/december/436-hammer-laughingmatter. U.S. Naval Institute.

3. Grace Commission Recommendations: Hearing Before the

S. Comm. on Finance, 98th Cong., S. Hrg. No. 98‑744, at 46 (1984),

https://www.finance.senate.gov/imo/media/doc/HRG98-744.pdf.

6

efficient. No longer would commercial companies need

to maintain separate production lines, quality systems,

or accounting structures to serve federal buyers. To

achieve this goal, Congress created a parallel acquisition

pathway—Federal Acquisition Regulation Part 12—that

exempted commercial purchases from over thirty unique

government requirements.4

FASA included a detailed statutory scheme for

ensuring adherence. It created mandatory commercialitem preferences codified at 10 U.S.C. § 3453 (formerly

10 U.S.C. § 2377), which used the word “shall” ten times.

See Kingdomware Techs., Inc. v. United States, 579 U.S.

162, 171 (2016) (rejecting the VA’s “may” construction

and holding that Congress’s use of “shall” in 38 U.S.C.

§ 8127(d) imposes a mandatory, non-discretionary duty).

It also requires agencies to: (1) conduct market research

before developing requirements (§ 3453(c)); (2) define

requirements to permit commercial solutions (§ 3453(a));

(3) acquire commercial items “to the maximum extent

practicable” (§ 3453(b)); (4) “require” prime contractors

to incorporate commercial components (§ 3453(b)(2)); and

(5) “ensure” primes conduct market research for contracts

exceeding $5 million (§ 3453(c)(5)).

The statutory scheme recognized a specific market

failure: prime contractors managing large integrated

procurements lack incentive to seek commercial

components that would displace their own profitable

development work. Subsections (b)(2) and (c)(5) thus

4. Federal Acquisition Regulation; Acquisition of Commercial

Items, 60 Fed. Reg. 48,231, at 48,246–47 (Sept. 18, 1995), https://

www.govinfo.gov/content/pkg/FR-1995-09-18/pdf/95-22778.pdf.

7

impose post-award obligations—agencies must ensure

primes research and use commercial alternatives even

after contract award. This obligation targets the precise

moment when agency oversight weakens and contractor

self-interest peaks.

Congress reinforced these mandates repeatedly

in national security contexts. The National Defense

Authorization Act for Fiscal Year 2009 required defense

agencies to “identify and evaluate opportunities for the

use of commercial computer software” at “all stages

of the acquisition process.”5 Multiple NDAAs further

strengthened § 3453—adding training (FY2016), pricing

market-research (FY2017), terminology and conforming

changes (FY2019), clarifications (FY2020), recodification

(FY2021), and, most recently, a directive to reward riskinformed decisions maximizing commercial acquisition

(FY2025). 10 U.S.C. § 3453; Pub. L. 114-92 § 844(a), 129

Stat. 915 (2015); Pub. L. 114-328 § 871, 130 Stat. 2307

(2016); Pub. L. 115-232 § 836(d)(3), 132 Stat. 1866, 1868

(2018); Pub. L. 116-92 § 818(a), 133 Stat. 1488 (2019); Pub.

L. 116-283 § 1821, 134 Stat. 4195 (2021); Pub. L. 118-159

§ 834, 138 Stat. 1986 (2024). Additionally, an Executive

Order in 2025 mandated removal of regulatory barriers

to commercial suppliers.6 The statutory text, legislative

history, and subsequent enactments make clear Congress’s

intent: commercial items first, development only when

commercial solutions are genuinely unavailable.

5. Defense Acquisition Regulations Sys., Defense Federal

Acquisition Regulation Supplement; Limitation on Procurements

on Behalf of the Dep’t of Def., 74 Fed. Reg. 34,270, at 34,270 (July

15, 2009), https://www.govinfo.gov/content/pkg/FR-2009-07-15/pdf/

E9-16668.pdf.

6. Exec. Order No. 14,271, 90 Fed. Reg. 16,433 (Apr. 18, 2025).

8

B. Agencies Gutted That Vision Th rough

Reinterpretation And Regulatory Accretion

Agencies quickly got to work overriding Congress’s

intent in order to preserve the status quo. The pattern

was consistent. Congress exempted commercial purchases

from government-unique requirements, so agencies

created parallel procedures to restore those requirements

under different names. Congress expanded the scope of

what counted as commercial items, so agencies imposed

procedural barriers that ensured this expansion would

be rarely applied. Today, nominally commercial contracts

bear enormous compliance burdens that Congress

had explicitly eliminated; and agencies treat statutory

commands as suggestions subject to their discretion.

The cost-data exemption illustrates the pattern

pa r ticula rly well. Cong ress explicitly exempted

commercial acquisitions from Truth in Negotiations Act

requirements—the “certified cost or pricing data” that

forced vendors to maintain government-unique accounting

systems. 41 U.S.C. § 3503 . The FAR mirrored that

command: contracting officers “shall not require certified

cost or pricing data” for commercial purchases. 48 C.F.R.

§ 15.403-1(b)(3).

But agencies built a workaround. The 1997 FAR Part

15 rewrite, led by the agencies themselves, authorized

contracting officers to demand “data other than” certified

cost or pricing data to establish price reasonableness—cost

breakdowns, sales records, internal estimates, etc.7 The

7. Federal Acquisition Reg ulation; Part 15 Rew r ite —

Contracting by Negotiation & Competitive Range Determination,

9

category was blessed by Congress to ensure procurement

at a “fair and reasonable price”, but the details were not.

10 U.S.C. § 3705(a). In fact, the information burden the

agencies created was functionally identical to the certified

cost packages Congress had prohibited. As 48 C.F.R.

§ 2.101 points out, in some cases the similarity has become

more than functional, stating explicitly that “[s]uch data

may include the identical types of data as certified cost

or pricing data.”

The DoD has been particularly effective at stymieing

Cong ressional mandates. For example, Cong ress

broadened the commercial-item definition to include items

“of a type” customarily used commercially and items

“offered” but not yet sold. 41 U.S.C. § 103(1)(A)–(B). The

DoD implemented this definition through DFARS 212.102,

which requires extra approval—“one level above the

contracting officer”—whenever determinations rely on a

category in the broader definition. 48 C.F.R. § 212.102(a)(1)

(C). Acquiring this approval is procedurally burdensome,

leading to commentary stating “documenting [commercial

items] has become so burdensome and fraught with risk, it

discourages contractors from buying commercial items or

treating commercial items as such.”8 Some requirements

have no commercial analogue whatsoever. DFARS

252.204-7012 mandates implementation of 110 NIST

cybersecurity controls and seventy-two-hour incident

62 Fed. Reg. 51,224, at 51,251 (Sept. 30, 1997), https://www.govinfo.

gov/content/pkg/FR-1997-09-30/pdf/97-25666.pdf.

8. Defense Contract Mgmt. Agency, DCMA CIG Industry

Day (Feb. 20, 2020) (slide deck), https://www.dcma.mil/Portals/31/

Documents/CIG/DCMA%20CIG%20Industry%20Day%20slides%20

20%20February%202020.pdf.

10

reporting—requirements vastly more burdensome than

those commercial customers demand. 48 C.F.R. § 252.2047012(b)(2); 48 C.F.R. § 252.204-7012(c)(1)(ii); Dep’t of Def.,

Class Deviation 2024-O0013 (May 2, 2024).

On their own, each of the above changes could

potentially be justified as policy, if not on textual grounds.

The needs for pricing accuracy, quality assurance,

and security are pressing. But Congress has spoken.

Commerciality is to be the goal, and, cumulatively, these

additions have buried it. If “to the maximum extent

practicable” is to hold any meaning at all, then it must

take priority over other considerations.

C.

The Section 809 Panel Documented How Far

Agencies Had Strayed From The Text

By 2016, Congress could no longer ignore the size

of the gap between statutory text and actual practice. A

2009 GAO review had found nearly 19% of commercial

contracts were in fact not commercial at all.9 A further

2014 study found that half of contracts had inadequate

market research documentation.10 To get to the bottom

of this gap, Congress chartered the Section 809 Panel to

9. U.S. Gov’t Accountability Off., Contract Management:

Minimal Compliance with New Safeguards for Time‑and‑Materials

Contracts for Commercial Services and Safeguards Have Not Been

Applied to GSA Schedules Program, GAO‑09‑579, at 28 (2009),

https://www.gao.gov/assets/gao-09-579.pdf.

10. U.S. Gov’t Accountability Off., Market Research: Better

Documentation Needed to Inform Future Procurements at Selected

Agencies, GAO‑15‑8, at 14 (2014), https://www.gao.gov/assets/gao15-8.pdf.

11

document how commercial procurement had failed at the

DoD. Over three years, the Panel produced nearly 2,000

pages documenting the extent of the non-compliance.

The Panel identified 109 clauses—54 in FAR, 55 in

DFARS—that the DoD was imposing on commercial

contracts in direct violation of FASA’s statutory criteria

for when government-unique terms could be added.11

109 clauses out of a total of 165. Nearly two thirds of the

clauses included in commercial defense procurement

contracts were illicitly added.

Expert commentary on the panel found that the

processes for determining whether a procurement

should be commercial had become “so unwieldy that they

sometimes consume even more time and paperwork than

the traditional development contracts that are designed

for military-unique systems.”12 The Panel “recommended

the [109] clauses…be removed” to restore commercial item

contracting to the original intent—laid out in FASA.13 As

of 2025, the status quo has prevailed and most remain.

11. Advisory Panel on Streamlining & Codifying Acquisition

Regulations (Section 809 Panel), Report of the Advisory Panel on

Streamlining and Codifying Acquisition Regulations, vol. 1 of 3, at

A‑41 (Jan. 2018), https://discover.dtic.mil/wp-content/uploads/809Panel-2019/Volume1/Sec809Panel_Vol1-Report_Jan2018.pdf.

12. Jared Serbu, Section 809 panel’s final report prescribes

“revolutionary” changes to DoD buying, Federal News Network (Jan.

15, 2019), https://federalnewsnetwork.com/acquisition-policy/2019/01/

section-809-panels-final-report-prescribes-revolutionary-changesto-dod-buying/.

13. Section 809 Panel, Vol. 1 Report, at A‑41 (Jan. 2018).

discover.dtic.mil

12

Despite these documented violations spanning

thousands of contracts and billions of dollars of waste,

“the application of 10 U.S.C. § 2377 has not often been

addressed…in the context of a bid protest.” Analytical

Graphics, Inc. v. United States, 135 Fed. Cl. 378, 424 (2017).

Standing doctrine ensures that there is no mechanism

to challenge violations post-award where incentives are

weakest, so enforcement is effectively nonexistent. The

statute had teeth in theory. In practice, it has none.

D.

The Empirical Consequences Of

Nonenforcement Have Been Stark

Decades of this nonenforcement have taken a toll on the

defense ecosystem. Agencies’ evasion of commercial-item

mandates has produced twelve-year delivery timelines,

billions in waste, and an exodus of small businesses from

the defense market. With the en banc court’s decision in

Percipient.ai set to further foreclose review, these harms

will accelerate unchecked.

D1. Skipping Market Research Adds Years of

Delay and Billions in Cost

As previously stated, GAO has repeatedly found that

agencies provide inconsistent or inadequate marketresearch documentation. Without such documentation,

which informs the agency about the scope of offerings

and modifications available, agencies cannot determine

whether feasible commercial alternatives exist. Without

that determination, agencies cannot satisfy the “maximum

extent practicable” standard. Instead, they acquire blindly

and default to custom development. The consequences for

delivery timelines have been predictably bad:

13

Product14 Commercial DoD Custom

Cycle

Development

Delay

Added

Vehicles

2 years

4.6 years

~2.5 years

Drones

~1 year15

3.8–15.3 years16

~3–14 years

Satellite

1.5-3 years17 8.8 years

~6–7 years

14. Unless otherwise cited, all data on the chart is from Alec C.

Blivas, Brenen Tidwell & Morgan Dwyer, Cycle Times and Cycles

of Acquisition Reform, CSIS Briefs (Aug. 5, 2020), https://www.csis.

org/analysis/cycle-times-and-cycles-acqu isition-reform.

15. Ben, Complete DJI Drone History & Release Date Timeline

(2013–2025), Gadgets N Tech (Oct. 14, 2025), https://gadgets-n-tech.

com/complete-dji-drone-history-release-dat e-timeline/.

16. On the low end, RQ-28A Short-Range Reconnaissance drone

at 3.8 years (Nov 2018 - Sep 2022), at the high-end, there is MQ-4C

Triton at 15.3 years.

Tajha Chappellet-Lanier, Army, Defense Innovation Unit

Move Forward With Surveillance Drone Project, FedScoop

(Apr. 29, 2019), https://fedscoop.com /army-diu-short-rangereconnaissance-drones-award / (repor ting DIU solicitation

issued Nov. 2018); U.S. Army, New Short Range Reconnaissance

Capability Begins Fielding to Soldiers (Oct. 12, 2022), https://

www.army.mil/article/261063/new_short_range_reconnaissance_

capability_begins_fielding_to_soldiers (last visited Nov. 4, 2025).

U.S. Navy, NAS Sigonella Welcomes First MQ-4C Triton (Apr. 1, 2024)

(noting VUP-19 achieved initial operational capability in Sept. 2023),

https://www.navy.mil/Press-Office/News-Stories/Article/3725909/nassigonella-welcomes-first-mq-4c-triton/; Northrop Grumman, U.S. Navy

Awards $1.16 Billion BAMS UAS Contract to Northrop Grumman

(Apr. 22, 2008), https://investor.northropgrumman.com/news-releases/

news-release-details/us-navy-awards-116-billion-bams-uas-contractnorthrop-grumman (last visited Nov. 4, 2025).

17. All SpaceX major satellite model refreshes, v1 Nov 2019,

v1.5 Sep 2021, v2 Feb 2023, v3 exp. early 2026, List of Starlink and

14

These multi-year custom development projects lead

to skyrocketing costs and technological obsolescence by

delivery. And that development has itself elongated over

time. From the turn of the millennium to today, GAO has

reported an increase in time-to-deployment of over 40

months—from 103 to 144 months.18 From 2024 to 2025,

the cost of thirty major defense acquisition programs

reviewed by the GAO increased by $49.3 billion.19 That is

an increase of nearly $50 billion in one year attributable

to less than half of the 79 total programs. 20 The method

of failure is simple. The DoD grants a large contract to a

prime, who—safe in the knowledge that standing doctrine

protects them from relevant complaints—prioritizes

internal development while blowing past the original

deadline and racking up billions in extra costs.

Examples abound. Development on the Sentinel ICBM

started in 2020 with a targeted 2029 deployment but

delivery has already been pushed to 2033—a four year

slip in five years. 21 The F-35 fighter started in 1996, with

Starshield launches, Wikipedia (last visited Oct. 31, 2025), https://

en.wikipedia.org/wiki/List_of_Starlink_and_Starshield_launches.

18. U.S. Dep’t of Def., Performance and Accountability Report,

Fiscal Year 2003, at 36 (Dec. 23, 2003), https://comptroller.war.gov/

Portals/45/Documents/afr/fy2003/00_Entire_Document.pdf.

19. U.S. Gov’t Accountability Office, Defense Acquisition

Reform: Persistent Challenges Require New Iterative Approaches

to Delivering Capability with Speed, at 5 (June 11, 2025), https://

www.gao.gov/assets/880/879068.pdf.

20. Id. at 2.

21. Frank Wolfe, Updated Sentinel Acquisition Strategy in

Works; EMD Approval Goal Early to Mid-2027, Defense Daily

15

initial deployment to be spread between 2012-2015. 22 In

reality, rollout did not conclude until 2019. 23 Even now,

its Block 4 modernization is five years late and billions

over budget. 24 MHS GENESIS, DoD’s electronic health

record system, started in 2015 and took nearly a decade

to reach enterprise rollout. 25 By comparison, commercial

electronic health records typically deploy in eighteen to

twenty-four months. 26

Experience in Ukraine has shown that Congress’s

mandates can work if allowed. Prior to Russia’s 2022

invasion, Ukraine had a custom-development focused

(Sept. 23, 2025), https://www.defensedaily.com/updated-sentinelacquisition-strateg y-in-works- emd-approval-goal- early-to mid-2027/air-force/.

22. Cong. Research Serv., F-35 Joint Strike Fighter (JSF)

Program: Background and Issues for Congress, at 8 (Dec. 22, 2009),

https://www.everycrsreport.com/files/20091222_RL30563_4e4c38f

6c1371c17b92fa2c7cc25a9c2aeae8df6.pdf.

23. U.S. Pac. Fleet, F-35C Achieves Initial Operational

Capability (Feb. 28, 2019), https://www.cpf.navy.mil/Newsroom/

News/Article/2664405/f-35c-achieves-initial-operational-capability/.

24. U.S. Gov’t Accountability Office, F-35 Joint Strike Fighter:

Actions Needed to Address Late Deliveries and Improve Future

Development, at 1 (Sept. 2025), https://www.gao.gov/assets/gao25-107632.pdf.

25. Adam Mazmanian, DoD Plans $1.4B Sole-Source Extension

for Leidos on Health Care Record, Nextgov/FCW (Oct. 23, 2024),

https://www.nextgov.com/acquisition/2024/10/dod-plans-14b-solesource-extension-leidos-health-care-record/400501/.

26. David Pumphrey, Tick‑Tock: How to Perfect Your EMR

Implementation Timeline, RiverAxe (Apr. 30, 2025), https://riveraxe.

com/emr-implementation-timeline/.

16

procurement system like our own. However, when faced

with mortal danger, they quickly pivoted to a commercialfirst system. Reports state that with this new commercial

focus, Ukraine has “reduce[d] timelines from years to

months—even weeks.” 27 Drone companies have scaled

from dozens to hundreds in two years, and electronicwarfare countermeasures are deployed within weeks of

new Russian threats. 28 The United States, by contrast,

averages nearly twelve years to deployment and delivers

obsolete technology.

D2. Uncontrolled Clause Proliferation Drove

Out Thousands of Vendors

Through their actions, agencies drove out tens of

thousands of vendors between FY2011 and FY2021—a

43 percent decline from 42,723 to 24,296. 29 First-time

27. Ctr. for Strategic & Int’l Stud., How Ukraine Rebuilt Its

Military Acquisition System Around Commercial Technology, at

2 (Jan. 2025), https://csis-website-prod.s3.amazonaws.com/s3fspublic/2025-01/250113_Bondar_Ukraine_Acquisition.pdf.

28. Compare Pavel Polityuk & Olena Harmash, Ukraine to

Produce One Million Drones Next Year, Reuters (Dec. 19, 2023),

https://w w w.reuters.com/world/europe/ukraine-produce-onemillion-drones-next-year-zelenskiy-says-2023-12-19/, with Yuliia

Dysa & Olena Harmash, Zelenskiy Woos US Businesses, Seeks

to Grow Ukraine’s Drone Industry, Reuters (Sept. 25, 2025),

https://www.reuters.com/business/zelenskiy-woos-us-businessesseeks-grow-ukraines-drone-industry-2025-09-25/, and Aosheng

Pusztaszeri & Emily Harding, Technological Evolution on the

Battlefield, Ctr. for Strategic & Int’l Stud. (Sept. 16, 2025), https://

www.csis.org/analysis/chapter-9-technological-evolution-battlefield.

29. U. S. Gov’t Accountability Off ice, Small Business

Contracting: Actions Needed to Implement and Monitor DOD’s

17

contractors across all agencies dropped 59 percent during

the same period.30 Defense prime contractors consolidated

from 51 in the 1990s to 5 today—a 90 percent contraction.31

Suppliers have exited precisely as AI, autonomy, cyber,

and advanced computing shifted to commercial leadership.

Roughly three-quarters of global R&D now occurs in the

commercial sector, but U.S. acquisition barriers impede

DoD access to that know-how. 32

Adding dozens of clauses to commercial contracts

since 1995 has raised regulatory burdens to uneconomical

levels, driving commercial firms from defense markets

and violating Congress’s mandate to utilize commercial

suppliers under § 3453. Reports support this thesis, with

the Section 809 Panel labelling these clauses as “barriers”

and a 2017 GAO survey where eleven of twelve companies

cited “government specific contract terms and conditions”

as a key challenge in supplying the defense market. 33

Small Business Strategy, at 8 (Oct. 2021), https://www.gao.gov/

assets/gao-22-104621.pdf.

30. Sarah Treuhaft et al., Fewer and Fewer Small Businesses

Are Getting Federal Contracts, National Equity Atlas (Sept. 28,

2021), https://nationalequityatlas.org/federalcontracts.

31. U.S. Dep’t of Def., State of Competition within the Defense

Industrial Base, at 1 (Feb. 2022), https://media.defense.gov/2022/

feb/15/2002939087/-1/-1/1/state-of-competition-within-the-defenseindustrial-base.pdf.

32. OECD, OECD Main Science and Technology Indicators:

Highlights from the March 2024 Edition, at 1 (Mar. 2024), https://

www.oecd.org/content/dam/oecd/en/data/datasets/main-scienceand-technology-indicators/msti-highlights-march-2024.pdf.

33. U.S. Gov’t Accountability Office, Military Acquisitions:

DOD Is Taking Steps to Address Challenges Faced by Certain

18

Comparisons with our rivals are stark. Senior

acquisition leaders have testified that China achieves

similar capability at a fraction of U.S. costs. Notably,

China has fielded multiple hypersonic systems while the

United States spent over $10 billion without a fielded

system during the same period. 34 Even the former head

of Air Force procurement is on record stating “China is…

about five to six times faster than us in acquisition.” China

is able to take full advantage of its commercial business

ecosystem, but due to enforcement failures, we cannot.

E. The En Banc Holding Would Remove the Last

Available Brake on Nonenforcement

The Federal Circuit’s en banc holding threatens

to eliminate standing for the only party incentivized

to remedy these commercial item violations. If left

untouched, it will ensure that only prospective prime

bidders retain standing—yet they have the least incentive

to enforce commercial requirements. This mismatch will

make the commercial item preference a dead letter.

The Federal Circuit has already ruled in Palantir

USG, Inc v. United States, 904 F.3d 980 (Fed. Cir. 2018),

that prospective commercial offerors who can meet

the requirements of a solicitation have standing under

Companies, at 9 (July 2017), https://www.gao.gov/assets/gao-17-644.

pdf.

34. David Wright & Cameron Tracy, Hypersonic Weapons Are

Mediocre. It’s Time to Stop Wasting Money on Them., Bulletin of the

Atomic Scientists (Mar. 12, 2024), https://thebulletin.org/2024/03/

hypersonic-weapons-are-mediocre-its-time-to-stop-wasting-moneyon-them/.

19

§ 1491(b). In that case, Palantir filed a pre-award bid

protest challenging the army’s solicitation, before it had

awarded the contract. It is also well-established that a

prospective bidder may lodge a pre-award GAO protest

on the grounds that a solicitation failed to conduct the

required market research. See Triad Isotopes, Inc.,

B-411360, 2015 CPD ¶ 220 (Comp. Gen. July 16, 2015) (preaward; sustained—set-aside based on inadequate market

research). So it is true that failure to properly adhere to

commercial item requirement duties creates standing for

those otherwise able to bid—at least pre-award.

When the duty completes prior to the award, as in

Palantir, this standing is sufficient. In that circumstance,

the prospective bidder can point directly to the failure

causing the harm before the award is granted. However,

any commercial offeror that can only fulfill a future

portion of the contract—even though equally supported

by the statutory language—is out of luck.

Because of their contract-then-subsequent-task-order

structure, indefinite delivery, indefinite quantity (IDIQ)

contracts such as the one in Percipient.ai provide a

particularly clear illustration of the problem. When these

contracts are awarded, the task specifics are not often

clear (hence, “indefinite”). Scope, quantities, and delivery

schedules are examples of categories often left for the

future. Nonetheless, Congress structured commercial-item

duties to be ongoing, continuing after the contract award,

even after the government issues each individual task order.

In theory then, commercial offerors simply need to wait for

these details to be released and then compete. But by that

point they can’t enforce their rights.

20

Traditionally, pre-award challenges to ongoing duties

do not have standing, as the prospective failure of duty

only exists in the future. But under the en banc court’s

opinion, post-failure challenges also have no standing.

This is because the commercial duty exists in the present,

but the court applies the “actual or prospective offeror”

standing test—which adheres to the contract awarded

in the past. To meet this bar would require the offeror

to be not just prospective, but clairvoyant. As a result,

§ 1491(b) standing requirements under the lower court’s

opinion may reasonably be stated as: If an agency

specifies exactly how a contract should be undertaken,

pre-award protests are available to commercial offerors;

but if the agency does not provide specifics, no protest

is available at all. This standard rewards agencies for

misbehavior and leaves potential plaintiffs like Percipient

fully standing-barred—regardless of whether they can

prove harm.

Under this holding, the only parties left with standing

to enforce the duty will be prospective prime bidders

on base contracts, the very people who § 3453 foists

commercial item preferences onto. But prime bidders

benefit from non-compliance. Custom development

delivers higher margins, creates vendor lock-in, and

eliminates competition. Non-compliance serves their

economic interests, and without standing, no outside party

is available to force compliance.

Commercial item vendors have the opposite incentives.

They suffer direct economic injury when agencies ignore

commerciality mandates. They lose sales, face improper

technical data requirements, and watch procurement

timelines stretch beyond their planning horizons. These

vendors would enforce the statute.

21

The parties who would enforce cannot sue. The parties

who can sue will not. The documented failures—109 noncompliant clauses, 50% inadequate market research, 40%

supplier exit, twelve-year timelines—persist because

doctrine creates an enforcement vacuum. As agency use

of IDIQ contracts continues to grow beyond 50% of all

government procurement dollars, these problems are set

to get worse. 35 If the en banc holding stands, forty years

of congressional reform will fall.

II. THE SUPREME COURT SHOULD GRA NT

CERTIORARI TO ADDRESS ERROR ON AN

IMPORTANT FEDERAL QUESTION

By itself, the erosion of America’s defense-industrial

base would not justify the grant of certiorari. What makes

it appropriate in this case is that the Federal Circuit’s

opinion is grounded in a serious error of statutory

interpretation, which fails to give proper consideration

to the plain meaning of the language in the Tucker Act.

A.

Textual Canons Strongly Suggest Differential

Standing for Prong 3 Challenges

The procedural history of this litigation is complex,

but the core legal task is a simple and familiar textual

exercise: statutory interpretation. Who is an “interested

party” in the context of the Tucker Act? To wit:

Both the United States Court of Federal Claims

and the district courts of the United States

35. Coalition for Gov’t Procurement, Market Report: The

State of the Federal Market, at 4 (May 2024), https://thecgp.org/

images/2024/06/23-Market-Report-2.pdf.

22

shall have jurisdiction to render judgment

on 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. (emphasis added, note

district court authority has sunset). 28 U.S.C.

§ 1491(b)(1)

Established textual canons make clear that the

Federal Circuit erred in its limitation of “interested

party” to actual and prospective bidders, and support

the broader interpretation that anyone with “a ‘direct

economic interest [that] would be affected by the

[challenged §1491(b)(1) action]’” has standing under the

law. Percipient.ai, Inc. v. United States, No. 23-1970, 2025

U.S. App. LEXIS 22128, at 48 (Fed. Cir. Aug. 28, 2025)

(Stoll, J., dissenting).

Three principles form the basis for this conclusion.

First, the “text must be construed as a whole…Context is

a primary determinant of meaning.”36 The Federal Circuit

departs from this principle in its review, instead importing

an “interested party” definition from an entirely separate

statute – the Competition in Contracting Act (CICA). This

is then dogmatically applied to the three prongs of the

Tucker Act with little regard to the context of the prongs

themselves. Indeed, to justify this transplantation, the

36. Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 167 (Thomson/West 2012).

23

Federal Circuit opinion spends fourteen pages recounting

a dense legislative history before ever examining the text

of the statute itself.

This exercise is unnecessary. “We have stated time

and again that courts must presume that a legislature says

in a statute what it means and means in a statute what it

says there…When the words of a statute are unambiguous,

then…‘judicial inquiry is complete.’” Conn. Nat’l Bank

v. Germain, 503 U.S. 249, 253–54 (1992). The words of

the Tucker Act are clear. The context of “an interested

party” shows it to simply mean a potential plaintiff with

a harm derived from “any alleged violation of statute or

regulation in connection with a procurement or proposed

procurement.” No limitation is express or implied.

Second, the plain language of the Tucker Act suggests

an expansive reading. The statute grants standing to “an

interested party objecting to…any alleged violation of

statute or regulation in connection with a procurement

or a proposed procurement (emphasis added)”. “Any”

statute or regulation is necessarily broad, and implies

a broader scope of parties than those that are actual or

prospective bidders. See United States v. Gonzales, 520

U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an

expansive meaning.”). It stretches believability to think

that Congress expressly calls out such a wide scope of

violations only to silently limit such a rule to bidders.

Third, the presumption against surplusage also makes

the meaning of “interested party” clear. The third prong

of the Tucker Act makes explicit that it is intended to allow

interested parties to challenge violations related to “a

procurement or proposed procurement”. If we are to “give

24

effect, if possible, to every clause and word of a statute”

then it is unclear why Congress would have specifically

called out procurements where it earlier references

awards and proposed awards in prong 2. “Procurement”

refers to the entire lifecycle of the process for acquiring

goods and services for the government – identifying needs,

scoping requirements, establishing budgets, soliciting

for bids, awarding contracts, and all other steps from

beginning to end.

The plain language supports the conclusion that

litigants like Percipient have standing. At the very least,

the sharp 7-4 division within the Federal Circuit in its en

banc review indicates the need for clarification, one that

only the Supreme Court can provide.

B. “Floodgate” Concerns Are Speculative

The Government has offered the concern that a finding

that litigants have standing to bring Prong 3 challenges

if they are “someone with a ‘direct economic interest

[that] would be affected by the [challenged §1491(b)(1)

action]’” will open the floodgates to costly and frivolous

litigation. “Permitting unrelated third parties who had no

involvement in the competitive process to interfere with

the performance of ongoing contracts under the guise of

bid protest review would threaten to destabilize every

Government contract.” Br. of Def.-Appellee United States

at 35–6, No. 23-1970 (Fed. Cir. Apr. 4, 2025).

We would challenge this premise. For one, a party

seeking to challenge a procurement or proposed

procurement must still show an actual competition injury

25

stemming from a specific ongoing duty. Similarly, plaintiffs

must offer facts indicating that the statutory violation was

the cause of such injury. For example, showing how the

inadequate market research harmed their ability to bid.

It is worth noting that, to date, these evidentiary burdens

appear to have limited the number of bona fide litigants

under the Tucker Act significantly: there are a minuscule

number of prong 3 cases which have been brought to

challenge procurements or proposed procurements.

Second, courts continue to apply the standard

machinery of justiciability requirements in allowing a

litigant to pursue a claim against the Government. The

analysis of redressability, ripeness, mootness all continue

to be important considerations, and the decision in this

case does not fundamentally change these Article III and

prudential limits.

Third, providing plaintiffs the standing that they are

intended to have under the Tucker Act does not allow

any party with a grievance to challenge a procurement.

“Direct economic interest” is itself a standard cabined by

the typical zone-of-interests tests. Plaintiffs must show

that their interests align with the statutory purposes

at issue, and remote or tangential interests remain

excluded.

Finally, given the limited universe of applicable

statutes, the primary material outcome of a finding of

standing in this case is that plaintiffs offering actual

commercial products meeting the statutory definition can

object to violations of statutes or regulations in connection

with a procurement or a proposed procurement.

26

C.

The Issues at Stake Implicate Critical Federal

Questions

The grant of certiorari is appropriate when a case

implicates “questions of general importance beyond the

particular facts”. Sup. Ct. R. 10. This is the situation

presented by this case. Ultimately, whether the Supreme

Court grants certiorari in this case will determine the

economic shape of our defense-industrial base, and in

connection our national security.

The involvement of the Court is particularly urgent

in this area since it is one where no split between the

Circuits will be forthcoming. The exclusive jurisdiction of

the Federal Circuit conferred by Administrative Dispute

Resolution Act means that it will serve as the last word

in the absence of review by this Court.

American power has always relied on the dynamism

of its defense industry. This dynamism has in turn relied

on the ability for our nation to draw on a vibrant, highly

competitive commercial ecosystem. For decades, Chrysler,

Ford, and even General Mills were commercial businesses

manufacturing cars and cereal at the same time they

produced missiles, satellites, and guidance systems for

the U.S. military. 37

37. Shyam Sankar, The Defence Reformation: 18 Theses for the

Resurrection of the American Industrial Base, 18Theses.com (Oct.

31, 2024), https://www.18theses.com/.

27

CONCLUSION

The historical record reviewed above in Part I shows

how agency and judicial decisionmaking in past decades

have systematically undermined this dynamism and

given rise to a slow-moving, sclerotic sector resistant to

new entrants. The decision of the Federal Circuit in this

case only compounds this problem by leaving commercial

players with little redress under the law when they are

excluded in violation of the law.

The legal error presented by this case therefore

implicates not just billions of dollars of federal funding

but also offers the question of whether the U.S. shall have

the powerful defense industry it needs in the coming,

dangerous decades. Ensuring that it does begins with the

simple act of guaranteeing that the government complies

with existing law and allows real competition back into

defense procurement. For these reasons, we urge the

Court to grant certiorari in this case.

November 6, 2025

Respectfully submitted,

Erika Payne

Snowflake Inc.

125 Constitution Drive

Menlo Park, CA 94025

Tim Hwang

Counsel of Record

Foundation for

American Innovation

2443 Fillmore Street,

#380-3386

San Francisco, CA 94115

(973) 960-4955

tim.hwang@thefai.org

Counsel for Snowflake, Inc.

and Sridhar Ramaswamy

Counsel for Amici Curiae

APPENDIX

1a

Appendix

APPENDIX — LIST

OF AMICI CURIAE

Warren K atz

Chairman of the Board

The A lliance for Commercial

Technology in Government

Jim Norton

Chairman of the Board

ASTI

K aamil Khan

President and General Counsel

Makpar Corporation

Christine Williams

Co-CEO

Foxtrot Professional Services

Woody Glier

CEO

Gallatin AI

A li Webster

Chief Business Officer

NEXA

Raj Shah

Managing Partner

Shield Capital