Judge reverses course, denies firm's standing to protest
Gettyimages.com/gorodenkoff
By
Nick Wakeman
Whether a subcontractor can force its way onto a team because it has a commercial product remains an unanswered question.
A federal judge has reversed course and ruled a software company does not have the standing to protest the National Geospatial-Intelligence Agency's choice of CACI International for an intelligence data management support contract.
In April, the judge ruled that Percipient.AI could pursue its protest to join the CACI team for that contract. A final decision in Percipient.AI's favor would have meant the company’s technology becomes part of the data management and visualization solution CACI is building for NGA.
Percipient.AI started the protest after it learned that CACI was tasked by NGA to build a customized solution. According to Percipient.AI, that solution does the same thing as its commercial product.
That argument is similar to the one Palantir used to force its way onto the Army Distributed Common Ground Systems-A program for battlefield intelligence. The Federal Acquisition Streamlining Act requires government agencies use commercial products if they are available and of use for a contract.
Percipient.AI claims it has a data visualization tool for unstructured intelligence data. CACI and NGA argued that Percipient didn’t have a right to protest because it couldn't be the prime contractor. The data visualization tool was just part of the overall solution NGA is buying, CACI and the agency said.
The judge previously said that Percipient.AI could continue to pursue its protest because it had an “economic interest” in the case.
Now the same judge has dismissed the case and ruled that Percipient.AI can't bring its protest to the U.S. Court of Federal Claims because the court doesn’t have jurisdiction. The contract in question is a task order and only the Government Accountability Office has jurisdiction over task order protests.
To add some salt to the wound, Percipient.AI can’t go GAO because it is too late. Companies generally have 10 days to file a protest after they know or should know the basis for why they are protesting. This situation is well past that deadline.
Left for another day is the bigger question of whether a subcontractor can force its way onto a team because that firm has a commercial product of potential use.
If that question does get answered and the answer from a judge, or even GAO, is Yes -- that will be an interesting development indeed.
The prime-subcontractor relationship can be fraught with difficulties under the best of circumstances. Just imagine if it is a forced marriage.