Joining other technology innovators co-signing an amicus brief filed by Foundation for American Innovation urging the Supreme Court to protect innovation, fairness, and access in federal procurement.

By Kaamil Khan, President, Makpar

Federal agencies should buy the best technology available and deliver value to taxpayers quickly. Congress has said this for years through laws that tell agencies to look first to commercial products before funding custom development.

However, a recent federal circuit court decision makes it much harder for the innovators who are harmed when agencies skip that rule to speak up in court.

That is why Makpar joined the Foundation for American Innovation’s amicus brief in Precipient.ai’s Petition for a Writ of Certiorari now pending before the United States Supreme Court. At its core, the case is about restoring legal standing for an “interested party” back to the status quo. While the legal question is straightforward, the policy implications are significant—particularly in ensuring that the federal government and its prime contractors comply with existing laws passed by Congress, which prioritize proven commercial solutions over expensive custom development.

We believe this moment matters for more than one case. It is about restoring common sense and commercial best practices in federal procurement, strengthening government modernization, national competitiveness, and the value delivered to American taxpayers.

What This Case is About in Simple Terms

• Under the Federal Acquisition Streamlining Act, Congress requires agencies to consider commercial technology before building from scratch. See 10 U.S.C. § 3453. This is common sense. It saves time and money and brings better tools to public servants and citizens.

• In the ruling now being appealed, the United States Court of Appeals for the Federal Circuit said that only the companies that bid on the main (or “prime”) contract can challenge violations of that rule.

• This ruling now bars subcontractors and other commercial vendors from enforcing the market research requirements of the Federal Acquisition Streamlining Act. See 10 U.S.C. § 3453(c)(5).

• If this rule remains in effect, it will undermine congressional intent and the text of its duly enacted statute, leading to a resurgence of slow-moving, custom-built solutions that drive up costs and stifle innovation.

The Federal Circuit’s decision is out-of-step with recent Executive Branch policy. For example, President Trump’s April 16 Executive Order, “Ensuring Commercial, Cost-Effective Solutions in Federal Contracts,” directs agencies to prioritize commercially available products and services as the default path.

At the same time, the Department of Defense is moving to implement new guidance that emphasizes commercial first acquisition and fewer bureaucratic layers. These signals—including a speech from Secretary Hegseth on the same day that amicus briefs in Percipient were due— show that the federal government is demanding faster and smarter procurement, and this case is aligned squarely with that shift.

Why Makpar Cares

Makpar exists to help agencies modernize with speed, security, and fiscal responsibility. Our teams deliver mission outcomes by applying proven commercial technology and repeatable architectures across identity, cyber resilience, cloud optimized engineering, and decision intelligence.

When agencies are allowed to sidestep the buy commercial first rule, several things happen that hurt missions and taxpayers:

• Delivery timelines stretch from months to years.
• Costs grow while features lag behind the private sector.
• Small- and mid-sized innovators are pushed out of the federal market.
• Vendor lock in increases and flexibility drops.

These are not abstract risks. We see them on the ground when agencies must rework systems, add manual controls, or delay services because a custom approach could not keep pace.

Why We Signed the FAI Brief

We joined FAI’s effort because the Court should hear from technology builders who serve the public every day. Removing barriers to innovation in procurement is essential to keeping government modern and competitive.

As such, our position is straightforward.

1. The law should work the way it’s written. Congress said agencies must research and favor commercial products to the maximum extent practicable. This duty continues after award as programs are executed. The parties who are harmed when that duty is ignored should be able to ask a court to enforce it—otherwise, the duty is meaningless. Precipient.ai’s writ simply asks for a return to the status quo where commercial vendors have a fair opportunity to compete and enforce the rules Congress already put in place.

2. Innovation depends on access. The appeals court’s ruling effectively silences subcontractors and other commercial vendors who support large federal prime Indefinite Delivery Indefinite Quantity (IDIQ) contracts post-award. This ruling incentivizes prime contractors to exclude many of the firms driving critical advancements in AI, cybersecurity, data, and cloud technologies. Without their voices, the market risks shifting toward slower, more expensive custom-built solutions led by these primes.

3. Taxpayers deserve better. Buying proven technology gets capability into the field quickly. It also lets agencies focus scarce talent on mission work rather than rebuilding what already exists.

This effort is not happening in isolation. Alongside Makpar, Palantir Technologies and almost 20 other industry leaders have also joined Percipient.ai’s efforts by filing or signing amicus briefs. Together, we are all reinforcing the same principle—that innovation should never be blocked by outdated procurement barriers.

A Moment to Get Procurement Right

This case represents more than a legal question. It is a reminder of why federal procurement reform matters now more than ever. Agencies face growing missions, tighter budgets, and an expanding technology landscape that moves faster than traditional acquisition can keep up.

In this instance, a prime contractor failed to perform required post-award market research that would have allowed a subcontractor’s commercial product to be considered, illustrating exactly why accountability in procurement is so important.

By reaffirming the principle that government should buy the best available commercial technology first, we have a chance to strengthen trust, improve performance, and accelerate modernization across government.

Getting procurement right means giving agencies the flexibility to adopt proven innovations quickly and ensuring that taxpayer dollars are spent wisely on technology that works.

What This Means for Agencies

This case is not about increasing litigation. It is about restoring a basic accountability loop—one that already existed—so the buy-commercial-first rule has real teeth. When that loop exists, agencies get:

• Shorter timelines and fewer rework cycles.
• Lower total cost of ownership.
• A larger vendor pool with modern security and compliance built in.
• Better alignment with Zero Trust goals and data protection mandates.

What This Means for Industry

A healthy federal technology market needs open competition from firms that already serve commercial customers at scale. Clear standing for harmed vendors will:

• Reward companies that invest in secure, ready to deploy products.
• Encourage partnerships where primes bring in best in class tools rather than reinventing them.
• Reduce barriers that drive smaller innovators away from the mission.

Our Commitment

Makpar will continue to advocate for practical reforms that help agencies deliver secure digital services with speed and precision. We believe in reusable blueprints, commercial platforms, strong data standards, and identity led security. Most of all, we believe that citizens win when government can adopt the best available technology without delay.

Thank you to the Foundation for American Innovation for writing this important brief, and to the many partners across government and industry who also spoke out—and are working to keep America at the forefront of technology and service.

This case is one step in a much larger effort to modernize how the government buys and builds technology. At Makpar, we will continue to engage in the national conversation about how to make procurement faster, smarter, and more accountable.

From advocating for commercial first approaches to exploring new models for multi-vendor, automation driven modernization, we remain focused on helping agencies achieve mission results at the speed of need.

Contact Makpar to learn how we can help your agency accelerate modernization and deliver mission success with speed, security, and precision.