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here_2_help

What Does "Enactment" Mean?

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Section 803(g)(3) of the 2018 NDAA states:

Quote

With respect to qualified incurred cost submissions
received on or after the date of the enactment of this section,
audit findings shall be issued for an incurred cost audit not
later than one year after the date of receipt of such qualified
incurred cost submission.

(Emphasis added.)

What does that mean in layperson's terms?

Does that mean when the bill was signed into law, or when somebody issues implementing regulations, or what?

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The bill says enactment of this section of the bill.  That is it.  Since regulations aren't issued anymore, there will be a deviation issued to the applicable regulation.  If there is not, the Administration is not in compliance with law.  Simple as that.  Its nothing new.

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Then it is in effect as it is written, whatever it means.  To my knowledge, there is no deviaition.  Maybe there is but I don't remember it. 

There are 2 possible dates in the section, with the first one accomplished:

Quote

With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, 

and

Quote

audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.

I added the italics in the first and second quote.  

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Thanks all.

DCAA recently issued audit guidance that assumed "date of enactment" was the date the bill was signed into law -- 12/17/2017. I was just looking for independent opinions regarding that assumption.

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H2H. what is the source of your information concerning the DCAA guidance?  I check the DCAA website daily for new MRDs but they are getting to be few and far between now.

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Guest Vern Edwards

Think about it this way--a "rule" cannot be imposed on a contractor until it (a) is a public law, or (b) is a properly promulgated regulation, or (c) is in a contract. Right?

When it comes to a statute, an enrolled bill that has been sent to the White House does not become a public law until (a) it is approved by the president, (b) it becomes law without the president's signature (10 days after received by the White House), or (c) Congress overrides a presidential veto. So "the date of enactment of this section" has to be the date on which one of those actions has taken place. Right?

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14 hours ago, Retreadfed said:

H2H. what is the source of your information concerning the DCAA guidance?  I check the DCAA website daily for new MRDs but they are getting to be few and far between now.

MRD 18-PIC-001, dated 29 January 2018.

FYI, DCAA doesn't post all its MRDs. The ones it chooses to post are released at a pace that I would consider to be very slow.

PM me with your email address and I will send it to you.

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2 hours ago, Vern Edwards said:

Think about it this way--a "rule" cannot be imposed on a contractor until it (a) is a public law, or (b) is a properly promulgated regulation, or (c) is in a contract. Right?

When it comes to a statute, an enrolled bill that has been sent to the White House does not become a public law until (a) it is approved by the president, (b) it becomes law without the president's signature (10 days after received by the White House), or (c) Congress overrides a presidential veto. So "the date of enactment of this section" has to be the date on which one of those actions has taken place. Right?

I don't know, Vern. That's why I asked. You make it sound straightforward but lawyers are involved. When that happens, nothing is straightforward, in my experience.

In particular I was concerned about "enacted into law" versus "enacted by regulation." I wondered if there might be some nuance I should be concerned about. Glad to see I have nothing to worry about.

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Guest Vern Edwards
2 hours ago, here_2_help said:

In particular I was concerned about "enacted into law" versus "enacted by regulation."

Regulation is not "enacted" in the U.S. It is promulgated. See Black's Law Dictionary 10th.

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2 hours ago, Vern Edwards said:

Regulation is not "enacted" in the U.S. It is promulgated. See Black's Law Dictionary 10th.

California’s five-year drought, which ended in 2016, had state officials scrambling to enact their own water restrictions.

— Aryn Baker, TIME.com, "What It’s Like to Live Through Cape Town’s Massive Water Crisis," 8 Feb. 2018

 

Proposals placed on the ballot will need support from at least 60 percent of the voters to be enacted.

— Sun-Sentinel.com, "Florida constitution panel comes to South Florida," 6 Feb. 2018

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H2H, I got the MRD.  Thank you.  While the MRD did not mention this, I suspect that many local offices will have very strict standards for determining whether a proposal to establish final indirect cost rates is adequate.  The longer they can delay the determination of adequacy, the longer they will have to complete the audit.  It was also interesting that the MRD did not mention multi-year audits, which are essentially prohibited by the NDAA.  Perhaps that will be the subject of another MRD.

In regard to your references to newspaper usage of the word "enact," newspapers are notorious about not understanding legal concepts.

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1 hour ago, Retreadfed said:

H2H, I got the MRD.  Thank you.  While the MRD did not mention this, I suspect that many local offices will have very strict standards for determining whether a proposal to establish final indirect cost rates is adequate.  The longer they can delay the determination of adequacy, the longer they will have to complete the audit.  It was also interesting that the MRD did not mention multi-year audits, which are essentially prohibited by the NDAA.  Perhaps that will be the subject of another MRD.

As I read the MRD the 12 month timeclock starts upon receipt, not upon a determination of adequacy. Look again at the dates in the example. Do you now agree, or have I missed something?

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Guest Vern Edwards
1 hour ago, here_2_help said:

California’s five-year drought, which ended in 2016, had state officials scrambling to enact their own water restrictions.

— Aryn Baker, TIME.com, "What It’s Like to Live Through Cape Town’s Massive Water Crisis," 8 Feb. 2018

 

Proposals placed on the ballot will need support from at least 60 percent of the voters to be enacted.

— Sun-Sentinel.com, "Florida constitution panel comes to South Florida," 6 Feb. 2018

State laws, Dude. And that's coming from newspapers, which aren't known for legal niceties.

Look, I responded to your question. Believe me or don't.

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1 hour ago, Retreadfed said:

In regard to your references to newspaper usage of the word "enact," newspapers are notorious about not understanding legal concepts.

So are people who are not attorneys.

Further, the Court of Appeals, Federal Circuit, established an interpretative approach based on "standard dictionary definitions and other pertinent regulations"--expressly excluding other expert sources' definitions. (Rumsfeld v. United Technologies Corp, Jan. 2003.) You can certainly argue that a Legal Dictionary definition is a "standard dictionary definition," if you'd like. But I'm not sure that Judge Dyk would agree. He favored Webster's Third New International Dictionary.

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Just now, Vern Edwards said:

State laws, Dude. And that's coming from newspapers, which aren't known for legal niceties.

Look, I responded to your question. Believe me or don't.

Thank you for responding. It's not a matter of belief.

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Guest Vern Edwards

Then I don't know what it's a matter of, and I could not care less.

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H2H, here is what Section 803 says about the one year time limit:  With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.  The way I read this, a qualified incurred cost submission is one that is adequate. 

This understanding is bolstered by this definition from 803:  The term `qualified incurred cost submission' means a submission by a contractor of costs incurred under a flexibly
    priced contract that has been qualified by the Department of  Defense as sufficient to conduct an incurred cost audit.
 

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12 hours ago, Retreadfed said:

H2H, here is what Section 803 says about the one year time limit:  With respect to qualified incurred cost submissions received on or after the date of the enactment of this section, audit findings shall be issued for an incurred cost audit not later than one year after the date of receipt of such qualified incurred cost submission.  The way I read this, a qualified incurred cost submission is one that is adequate. 

This understanding is bolstered by this definition from 803:  The term `qualified incurred cost submission' means a submission by a contractor of costs incurred under a flexibly
    priced contract that has been qualified by the Department of  Defense as sufficient to conduct an incurred cost audit.
 

Retreadfed,

You are quoting from Section 803, and I asked you to read the MRD. I think the MRD clarifies that the one-year clock starts ticking when the proposal is received. From that time, 60 days to determine adequacy and 10 more months to finish audit procedures and to issue the report. A total of 12 months, not 14. That's how I read it, anyway.

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The MRD is consistent with section 803 in that the MRD advises "Another important aspect of the NDAA requirement is completing incurred cost assignments within 12 months of receiving a qualified submission after the date of enactment."  Thus, it explicitly bases the 12 month period on receipt of a "qualified (adequate) submission."

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1 hour ago, Retreadfed said:

The MRD is consistent with section 803 in that the MRD advises "Another important aspect of the NDAA requirement is completing incurred cost assignments within 12 months of receiving a qualified submission after the date of enactment."  Thus, it explicitly bases the 12 month period on receipt of a "qualified (adequate) submission."

Again, did you check the dates in the hypothetical? Seems to me it's a 12-month cycle. Oh, well. I guess we'll see...

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Yes.  The dates in the hypo were based on the initial proposal being adequate.  The MRD did not give a hypo of where the initial proposal was deemed inadequate.  However, the sentence I quoted from the MRD shows that DCAA recognizes that the 12 months begins when an adequate proposal is received. 

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