NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5141 

MOORE’S CAFETERIA SERVICES, 

doing business as MCS Management, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee. 

Sam Z. Gdanski, Gdanski & Gdanski, LLP, of Suffern, New York, for 

plaintiff-appellant. 

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for defendant-appellee. With 

her on the brief were Jeanne E. Davidson, Director, and Donald E. Kinner, Assistant 

Director. 

Appealed from: United States Court of Federal Claims 

Judge Nancy B. Firestone 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2007-5141 

MOORE’S CAFETERIA SERVICES, 

doing business as MCS Management, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 07-CV-377, Judge Nancy B. 

Firestone. 

__________________________ 

DECIDED: March 20, 2008 

__________________________ 

Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit 

Judge. 

PER CURIAM. 

In this post-award bid protest case, Moore’s Cafeteria Services (“MCS”) appeals 

the judgment of the United States Court of Federal Claims in favor of the United States 

(“Government”). We affirm. 

This case involves a solicitation by the Department of the Army (“Army”) for the 

provision of food services at Fort Campbell, Kentucky, for one year beginning April 1, 

2007. The solicitation was a best value procurement and indicated that proposals 

would be evaluated using lowest priced technically acceptable award criteria. The 
2007-5141 2

solicitation initially stated that “a technically acceptable offer from a qualified State 

Licensing Agency will receive preference in accordance with the Joint Report to 

Congress, dated August 29, 2006.” The referenced Joint Report was a report submitted 

by three parties, including the Department of Defense, as required by the RandolphSheppard Act (“RSA”), which gives priority to state licensed blind persons in the 

procurement of vending facility contracts. 20 U.S.C. § 107(b). The Joint Report 

proposed a methodology for ensuring that appropriate priority was given under the RSA 

in military dining procurements. 

After receiving an inquiry from the Kentucky Office for the Blind, a State 

Licensing Agency (“SLA”), the Army’s contracting officer amended the solicitation to 

remove reference to the Joint Report and to provide that an SLA would receive 

preference in accordance with the RSA. The Army’s position was that the specific 

policies set forth in the Joint Report would not be effective until implemented by 

regulations. MCS, the incumbent contractor, did not object to the amendment. 

The contracting officer evaluated the three technically acceptable proposals that 

were submitted, including one from MCS and one from the Kentucky SLA, and awarded 

the contract to the SLA. After the Government Accountability Office denied its protest, 

MCS filed suit in the Court of Federal Claims, alleging, inter alia, that the award violated 

the Joint Report’s requirement that a contract not be awarded to an SLA whose price 

exceeds the best value offer by more than five percent. The trial court granted the 

Government’s motion for judgment on the administrative record. MCS appeals. 

We review the trial court’s determination on the legal issue of the Government’s 

conduct, in a grant of judgment on the administrative record, without deference. 
2007-5141 3

Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). Reapplying the 

standards set forth in the Administrative Procedure Act, we may set aside the agency’s 

procurement decision only if it was “arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law.” Id. (quoting 5 U.S.C. § 706(2)(A)). 

First, we agree with the trial court that MCS waived the ability to challenge the 

terms of the solicitation by failing to object prior to the close of bidding. See Blue & 

Gold Fleet, L.P. v. United States, 492 F.3d 1308, 1313 (Fed. Cir. 2007). When the 

solicitation was amended to delete the reference to the Joint Report, MCS was on 

notice that the contract did not require the contracting officer to follow the methodology 

set forth in the Joint Report, including the five percent benchmark for evaluating price 

reasonableness. If MCS believed that the contracting officer was legally required to 

consider the Joint Report in making the award, as it now argues, the proper time for 

raising that issue was before the bidding process was complete. See id.

In the absence of a five percent standard, we also agree with the trial court that 

the contracting officer’s price reasonableness evaluation had a rational basis and was 

not arbitrary, capricious, or an abuse of discretion. The contracting officer compared 

the prices of the three technically acceptable offers, determined that the range of 

variation was relatively narrow, and thus concluded that the price of the SLA’s offer, 

which was between the other two, was reasonable. This is an acceptable method for 

evaluating price reasonableness. 48 C.F.R. § 15.404-1(b)(i). The fact that MCS’s 

proposed price was lower than the SLA’s price does not demonstrate that the SLA’s 

price was unreasonable, especially when the solicitation stated that “application of [the 
2007-5141 4

RSA] preference may result in award to other than the lowest priced technically 

acceptable offeror.” 

Finally, as the trial court correctly determined, MCS has not shown any prejudice 

in alleged errors in the Independent Government Estimate (“IGE”). Although 

comparison to the IGE was not required, the contracting officer also used that method to 

determine that the SLA’s price was reasonable. However, she stated even if the IGE 

were flawed and required correction, she still would have determined that the SLA’s 

price was reasonable based on comparison to the other offeror’s prices. Thus, MCS 

has not established that it suffered “significant prejudice” because it cannot show it 

would have received the contract award but for the alleged errors in the IGE. Bannum, 

404 F.3d at 1353. 

We have considered MCS’s additional arguments and find them to be without 

merit.