NOTE: This disposition is nonprecedential.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 defendantappellee, 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 Products (“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 August 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 maximum 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 numerical 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 challenging “nearly every aspect of [the] agency’s acquisition 

planning, evaluation, and ranking of Plott Bakery Products.” 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 solicitation 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 solicitation 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 adequately 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. Burney 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 challenge 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 Construzioni 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 decision. 

COSTS

 No costs.