Freshfields U.S. government contracts Counsel Nathaniel E. Castellano and Senior Associate Maria Slobodchikova published an article describing a petition currently pending before the U.S. Supreme Court that carries significant implications for the U.S defense industry—and, more broadly, any company that seeks to sell commercial technologies to the U.S. government.
U.S. agencies are required by statute to prioritize and accommodate the acquisition of commercially available technology, rather than paying to develop bespoke government solutions. In practice, however, agencies often depart from commercial business practices by imposing unique performance specifications, contract terms, and compliance obligations. In the case before the Court, the petitioner contends that a U.S. agency and its chosen prime contractor violated their statutory obligations by choosing to develop a new artificial intelligence (AI) “Computer Vision” capability instead of leveraging a commercially available Computer Vision solution.
The petition follows years of high profile bid protest litigation at the U.S. Court of Federal Claims and Court of Appeals for the Federal Circuit. The key question at this point is: which companies have standing to enforce a federal agency’s obligation to prioritize commercially available solutions over new development. In a divided en banc opinion, the Federal Circuit held that the petitioner does not have standing to sue because it did not compete for the prime contract and was only interested in supporting the agency as a downstream supplier. If the Supreme Court allows the Federal Circuit’s decision to stand, that will effectively preclude judicial review of many agency decisions to have a prime contractor develop new technologies that the commercial market already offers.
The full article, available here, is published in the January 2026 issue of The Nash & Cibinic Report.
