GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

In early June 2024 the U.S. Court of Appeals for the Federal Circuit issued its decision in Percipient.ai, Inc. v. United States, 104 F.4th 839 (Fed. Cir. 2024). The Percipient decision was noteworthy primarily because it seemed at odds with established precedents regarding standing to bring a bid protest: the case recognized standing in a non-bidder that was not even a potential prime contractor. But a few weeks later the Supreme Court issued its landmark decision in Loper Bright Enterprises v. Raimondo, No. 22-451, in which the Court departed from a forty-year practice of judicial deference under Chevron v. Natural Resources Defense Council, 467 U. S. 837 (1984). Suddenly the approach taken in Percipient took on a new cast: the Percipient decision, like Loper Bright, emphasized the courts’ primacy in interpreting the law, and so Percipient may turn out to have been one of the first decisions which follows Loper Bright’s trajectory and opens new lines of challenge to agency procurement decisions, grounded in the courts’ prerogative to define what the law is.

GW Paper Series

2024-55

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