ERNST & YOUNG, LLP v. USA

Filing 72

Re-docketed for posting to the court's website. UNREPORTED FINAL ORDER granting 65 Motion to Dismiss - Rule 12(b)(1); Order of Dismissal. The Clerk is directed to enter judgment. Signed by Senior Judge Susan G. Braden. (aa) Service on parties made.

In the United States Court of Federal Claims
No. 17-1329
Filed: November 29, 2018
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ERNST & YOUNG, LLP,
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Plaintiff,
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v.
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THE UNITED STATES,
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Defendant,
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and
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PRICEWATERHOUSECOOPERS PUBLIC *
SECTOR, LLP,
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Defendant-Intervenor.
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Jurisdiction;
RCFC 12(b)(1) (Motion To Dismiss For
Lack Of Subject-Matter Jurisdiction);
RCFC 52.2(b) (Order To Remand).

FINAL ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
On September 25, 2017, Ernst & Young, LLP (“E&Y”) filed a Complaint, under seal, in
the United States Court of Federal Claims alleging that the United States Department of Veterans
Affairs (“VA”) improperly awarded a contract to PricewaterhouseCoopers Public Sector, LLP
(“PwC”). ECF No. 1.
On September 27, 2017, PwC filed a Motion To Intervene. ECF No. 15. That same day,
the court granted the Motion To Intervene. ECF No. 21.
On November 20, 2017, E&Y filed a Motion For Judgment On The Administrative Record.
ECF No. 37.
On November 30, 2017, E&Y filed an Amended Complaint. ECF No. 43.
On December 8, 2017, the Government filed a Cross-Motion For Judgment On The
Administrative Record And Response. ECF No. 45. That same day, PwC also filed a CrossMotion For Judgment On The Administrative Record. ECF No. 46.

On December 14, 2017, E&Y filed a Reply And Response To The December 8, 2017
Cross-Motions. ECF No. 48.
On December 20, 2017, the Government and PwC each filed a Reply. ECF No. 50, 51.
On March 5, 2018, the court issued a Memorandum Opinion And Final Order Granting
Plaintiff’s Motion For Judgment On The Administrative Record In Part, that concluded:
For the reasons discussed herein, Plaintiffs’ November 20, 2017
Motion For Judgment On The Administrative Record is granted as
to Counts I, II, IV, and, in part, III, and denied as to Count V; the
Government’s December 8, 2017 Cross-Motion For Judgment On
The Administrative Record is denied; and, PwC’s December 8, 2017
Cross-Motion For Judgment On The Administrative Record is
denied.
In addition, the VA’s decision to award Order No. VA101F-17-J3076 and [blanket purchase agreement (“BPA”)] No. VA101F-17A-3074 to PwC is set aside and this matter is remanded to the VA.
As set forth in [Rule of the United States Court of Federal Claims
(“RCFC”)] 52.2(b)(1)(B), the remand will expire in six months, i.e.,
on August 23, 2018, during which time the VA is enjoined from
proceeding with performance under Order No. VA101F-17-J-3076
and BPA No. VA101F-17-A-3074. As set forth in RCFC
52.2(b)(1)(D), the Government is directed to report the status of this
matter “every 90 days or less,” until the remand expires.
The Clerk is directed to enter judgment accordingly.
ECF No. 61 at 54 (quotations, not modifications, in original).
On March 6, 2018, a Data Quality Analyst in the Office of the Clerk of Court for the United
States Court of Federal Claims sent a letter to the General Counsel of the VA advising him of the
court’s March 5, 2018 Memorandum Opinion. ECF No. 62.
On May 24, 2018, the Government submitted a Status Report reporting that the VA was
“evaluating its current requirements.” ECF No. 63 at 1.
On August 6, 2018, the Government submitted another Status Report reporting that the VA
planned to issue “an amended solicitation for the BPA and task order,” open to “the entities that
previously submitted proposals.” ECF No. 64 at 1–2.
On September 17, 2018, the Government filed a Motion To Dismiss for lack of subject
matter jurisdiction, pursuant to RCFC 12(b)(1). ECF No. 65. The September 17, 2018 Motion To
Dismiss represents that “the VA issued an amended solicitation to the entities that previously
submitted proposals, including [E&Y], and the VA has given each entity the opportunity to review
the relevant data that the VA identified as having been previously provided to PwC.” ECF No. 65
at 3. “The amended solicitation closed on September 12, 2018,” and the VA “expects to make an
award by October 24, 2018.” ECF No. 65 at 3. Therefore, the case is moot. ECF No. 65 at 5–6.
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On September 21, 2018, E&Y filed a Response that “does not dispute that the VA has acted
as the Court directed.” ECF No. 66 at 2. But, the September 21, 2018 Response also represents
that the VA “has not completed the re-competition and has not yet re-awarded the BPA and Order.”
ECF No. 66 at 3. For that reason, E&Y “believes that the Clerk should enter the judgement (sic)
per the Court’s [March 5, 2018 Memorandum Opinion] and note the status reporting obligations
are at an end based on the passage of six months.” ECF No. 66 at 3.
On October 5, 2018, the Government filed a Reply that reiterates the reason why this case
is moot, i.e., “E&Y concedes that it has already secured the relief that it sought.” ECF No. 67 at
2. The October 5, 2018 Reply concludes:
Though we do not believe that [E&Y] has shown that dismissal
would have any prejudicial impact on its interests, the essential point
is that the matter is concluded and should be closed on the Court’s
docket. The parties do not dispute as much, and we respectfully
defer to the Court as to the best means to accomplish administrative
closure of this matter, whether it be by dismissal for mootness or a
renewed instruction to the clerk to enter judgment.
ECF No. 67 at 2.
On November 26, 2018, the court directed the Government to “submit an update on
whether the VA has made the anticipated October 24, 2018 award.” ECF No. 68 at 1.
On November 29, 2018, the Government reported that the VA “made the expected award
on November 26, 2018” to Guidehouse LLP, formerly known as PwC. ECF No. 69 at 1.
The March 5, 2018 Memorandum Opinion And Final Order set aside and enjoined the VA
from proceeding with Order No. VA101F-17-J-3076 and BPA No. VA101F-17-A-3074. ECF No.
61 at 54. Based on the Government’s uncontested representation that the VA has complied with
the March 5, 2018 Memorandum Opinion And Final Order, the court has determined that the
November 30, 2017 Amended Complaint is moot. Therefore, the case must be dismissed. RCFC
12(b)(1).
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Senior Judge

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