United States Court of Appeals for the Federal Circuit ______________________

PERCIPIENT.AI, INC., Plaintiff-Appellant

v.

UNITED STATES, CACI, INC.-FEDERAL, Defendants-Appellees ______________________

2023-1970 ______________________

Appeal from the United States Court of Federal Claims in No. 1:23-cv-00028-EGB, Senior Judge Eric G. Bruggink. ______________________

Decided: June 7, 2024 ______________________

SAMUEL CHARLES KAPLAN, Boies Schiller Flexner LLP, Washington, DC, argued for plaintiff-appellant. Also rep- resented by HAMISH HUME, ERIC J. MAURER, GINA ALICIA ROSSMAN.

RETA EMMA BEZAK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for defendant-appellee United States. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, CORINNE ANNE NIOSI.

ANNE PERRY, Sheppard Mullin Richter & Hampton LLP, Washington, DC, argued for defendant-appellee Case: 23-1970 Document: 46 Page: 2 Filed: 06/07/2024

2 PERCIPIENT.AI, INC. v. US

CACI, Inc.-Federal. Also represented by JONATHAN SCOTT ARONIE, TOWNSEND BOURNE, LILLIA JO DAMALOUJI, ARIEL ELIZABETH DEBIN. ______________________

Before TARANTO, CLEVENGER, and STOLL, Circuit Judges. Opinion for the court filed by Circuit Judge STOLL. Dissenting opinion filed by Circuit Judge CLEVENGER. STOLL, Circuit Judge. This case principally involves the question of whether a prospective offeror of commercial items to a government contractor may bring an action against the Government for alleged procurement-related statutory violations under the Tucker Act, 28 U.S.C. § 1491(b)(1) (allowing suit by “inter- ested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or a pro- posed procurement”), where the allegations do not chal- lenge a contract, proposed contract, or solicitation for a contract between the Government and its contractor or the issuance of a task order under such a contract. Percipi- ent.ai, Inc. appeals the decision of the United States Court of Federal Claims granting the Government’s and interve- nor CACI, Inc.-Federal’s (collectively, “Defendants”) mo- tions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Rules of the U.S. Court of Federal Claims. The trial court erred in holding that the Federal Acquisition Streamlining Act of 1994 (FASA) task order bar, 10 U.S.C. § 3406(f)(1), applies to Percipient’s protest, thereby removing the case from coverage by the Tucker Act. Separately, we reject Defendants’ alternative argu- ments for affirming the trial court, which are based on the Tucker Act itself, standing, and timeliness. We thus re- verse and remand. Case: 23-1970 Document: 46 Page: 3 Filed: 06/07/2024

PERCIPIENT.AI, INC. v. US 3

BACKGROUND The National Geospatial-Intelligence Agency (NGA) provides intelligence data to the federal government by an- alyzing images and geospatial information. NGA issued a solicitation, referred to as SAFFIRE, to sustain and im- prove its processes for obtaining and storing visual intelli- gence data, and integrating those capabilities with computer vision (CV), a form of artificial intelligence. 1 Per- cipient’s complaint sets forth the relevant facts. SAFFIRE sought a single award Indefinite Delivery, Indefinite Quantity (IDIQ) contract. This type of contract “allows an agency to issue a broad solicitation for a general procurement goal and then more detailed solicitations for individual task orders as specific needs arise.” See, e.g., 22nd