Burney v. United States , 499 F. App'x 32 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EVELYN BURNEY, DOING BUSINESS AS PLOTT BAKERY
PRODUCTS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
STERLING FOODS, INC.,
Defendant-Appellee.
__________________________
2012-5088
__________________________
Appeal from the United States Court of Federal
Claims in case no. 12-CV-067, Senior Judge Eric G.
Bruggink.
__________________________
Decided: December 11, 2012
___________________________
EVELYN BURNEY, of Norfolk, Virginia, pro se.
CARRIE A. DUNSMORE, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
EVELYN BURNEY v. US 2
ment of Justice, of Washington, DC, for defendant-
appellee, United States. With her on the brief were
STUART F. DELERY, Acting Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and KIRK T. MANHARDT,
Assistant Director.
__________________________
Before DYK, MOORE, and REYNA, Circuit Judges.
PER CURIAM.
Evelyn Burney, doing business as Plott Bakery Prod-
ucts (“Plott”), appeals a Court of Federal Claims (“Claims
Court”) decision dismissing her post-award bid protest
and granting the government’s motion for judgment on
the administrative record. The Claims Court determined
that the claims raised in this appeal were either waived
or lacked merit. Burney v. United States, No. 12–67C,
2012 WL 1632353 (Fed. Cl. Apr. 26, 2012). We affirm.
BACKGROUND
On April 1, 2011, the Defense Logistics Agency (the
“agency”) issued a solicitation for twenty separate baked
food items for the Meal, Ready-to-Eat Ration Program.
The solicitation required bidders to submit proposals
addressing their Past Performance, Socioeconomic Goals,
Surge/Mobilization Plans, Product Protection Plans, and
Integrated Pest Plans, as well as samples of the food. On
April 13, 2011, the agency issued Amendment 1 to the
solicitation, allowing bidders to bundle their offers for
different baked food items by offering a discounted price if
awarded the contract for multiple items. On May 6, 2011,
Plott bid on chocolate chip cookies, one-pack wheat snack
bread, and two-pack wheat snack bread.
3 EVELYN BURNEY v. US
The agency began negotiations with bidders on Au-
gust 11, 2011. During negotiations, the agency informed
Plott that its offer was deficient in several respects and
that its wheat snack bread samples had only received a
“fair” rating. Plott attempted to correct these deficiencies
with a revised proposal, but again received a “fair” rating
for wheat snack bread. On November 17, 2011, the
agency awarded all 20 baked food items to Sterling Foods,
Inc. (“Sterling”), which had the highest numerical ratings
for food samples of eighteen of twenty items, including the
three that Plott bid on. Sterling also offered substantially
discounted prices based on the percentage of the maxi-
mum quantity of all items awarded to it. The agency’s
pricing analysis concluded that awarding all twenty items
to Sterling would cost a maximum of $162,320,531 as
opposed to a maximum cost of $219,543,092 if the agency
awarded each item to the bidder with the highest numeri-
cal ratings for food samples of that item, resulting in a
cost savings of up to $57,222,561.
On November 19, 2011, after learning that Plott had
not received an award, Burney filed a protest with the
agency. After the agency denied Burney’s protest, she
brought a bid protest action in the Claims Court challeng-
ing “nearly every aspect of [the] agency’s acquisition
planning, evaluation, and ranking of Plott Bakery Prod-
ucts.” Burney, 2012 WL 1632353 at *4. Burney argued,
inter alia, that the solicitation and Amendment 1 to the
solicitation were improper, that Amendment 1 did not
authorize the agency to award all items to a single bidder,
that the agency did not sufficiently identify defects in
Plott’s proposal during negotiations, and that the agency
erred in its evaluation of Plott’s proposal. Id. at *5–6.
The Claims Court concluded that Burney waived her
challenges to the solicitation and Amendment 1 by failing
to raise them in a timely fashion. Id. at *5. The Claims
EVELYN BURNEY v. US 4
Court also held that Amendment 1 permitted the agency
to award all twenty items to a single bidder. Id. Finally,
the Claims Court upheld the agency’s evaluation of the
merits of Plott’s proposal. Id. at *6. This appeal followed.
DISCUSSION
We review the Claims Court’s assessment of agency
actions without deference to determine whether the
agency’s actions were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed.
Cir. 2005) (quoting 5 U.S.C. § 706(2)(A)).
Burney objects to various aspects of the solicitation.
Burney also argues that Amendment 1 to the solicitation
was improper. But if the solicitation or Amendment 1
was flawed, then Burney was required to object before the
award. The alleged errors here were patent. When
objecting to a patent error in a government solicitation, a
bidder cannot wait until its “proposal loses to another
bidder [and] then come forward with the defect to restart
the bidding process.” Blue & Gold Fleet, L.P. v. United
States, 492 F.3d 1308, 1314 (Fed. Cir. 2007). Rather,
“assuming that there is adequate time in which to do so, a
disappointed bidder must bring a challenge to a solicita-
tion containing a patent error or ambiguity prior to the
award of the contract.” Comint Sys. Corp. v. United
States, No. 2012–5039, slip op. at 8 (Fed. Cir. Dec. 7,
2012). The Claims Court therefore correctly found that
the supposed errors identified by Burney were patent and
that Burney failed to preserve her objections to the solici-
tation or Amendment 1 by failing to object before the
contract was awarded to Sterling.
Burney argues that Amendment 1 did not authorize
award of all twenty items to a single bidder. Amendment
1, however, states clearly that “the government reserves
5 EVELYN BURNEY v. US
the right to award any combination of line items if it is
determined to be in its best interest.” Thus, the plain
language of the amendment authorized the award of all
twenty items to a single bidder.
Burney also alleges that the agency did not ade-
quately inform her of the weaknesses in Plott’s proposal
during discussions. The agency did, in fact, inform her of
the weaknesses in her proposal. In any event, Burney has
not demonstrated any prejudice as a result of the defects
she alleges in the agency’s discussions with her. As
discussed above, Sterling received higher numerical
ratings on every food item that Plott bid on, and Sterling
offered the lowest overall price to the government. Bur-
ney has not shown how further discussions would have
given Plott a substantial chance of receiving an award.
Absent such a showing, Burney lacks standing to chal-
lenge the award of the contract based on the agency’s
alleged failure to hold meaningful discussions with her.
See Rex Serv. Corp. v. United States, 448 F.3d 1305, 1308
(Fed. Cir. 2006).
Many of Burney’s objections concern the evaluation of
her proposals by the agency. To the extent that Burney is
arguing that Plott should have received a higher rating
for Socioeconomic Goals, she has not demonstrated any
reversible error in the agency’s evaluation. Burney also
challenges the agency’s evaluation of Plott’s and Sterling’s
pricing, and the technical ratings assigned to sample food
items. These arguments deal with the “minutiae of the
procurement process . . . which involve discretionary
determinations of procurement officials that a court will
not second guess.” E.W. Bliss Co. v. United States, 77
F.3d 445, 449 (Fed. Cir. 1996). Sterling received the
highest numerical ratings on eighteen of twenty items,
including all three items that Plott bid on. Additionally,
taking Sterling’s volume discount into consideration,
EVELYN BURNEY v. US 6
awarding all twenty items to Sterling resulted in the
lowest overall price. The agency’s decision to award all
twenty items to Sterling was therefore plainly reasonable.
Burney has not carried the “heavy burden of showing that
the award decision had no rational basis.” Impresa Con-
struzioni Geom. Domenico Garufi v. United States, 238
F.3d 1324, 1333 (Fed. Cir. 2001) (internal quotation
marks omitted).
We have considered Burney’s remaining arguments
and find no reversible error in the Claims Court’s deci-
sion.
COSTS
No costs.