Architect of the Capitol--Payment of Fringe Benefits to

B-303961 Dec 06, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Participation by the Architect of the Capitol (AOC) in a multiemployer defined benefit plan would constitute a violation of the Antideficiency Act because of the possibility of indeterminate withdrawal liability under the Employee Retirement Income Security Act. Language instructing AOC to take all steps which may be required to pay fringe benefits to its temporary employees "notwithstanding any other provision of law" does not suffice to waive the Antideficiency Act. Nothing in the statute or its legislative history suggests that Congress intended a waiver of the Antideficiency Act, and AOC can give effect to both this language and the Antideficiency Act. View Decision B-303961, Architect of the CapitolPayment of Fringe Benefits to Temporary Employees, December 6, 2004 Decision Matter of: Architect of the CapitolPayment of Fringe Benefits to Temporary Employees File: B-303961 Date: December 6, 2004 DIGEST Participation by the Architect of the Capitol (AOC) in a multiemployer defined benefit plan would constitute a violation of the Antideficiency Act because of the possibility of indeterminate withdrawal liability under the Employee Retirement Income Security Act. Language instructing AOC to take all steps which may be required to pay fringe benefits to its temporary employees "notwithstanding any other provision of law" does not suffice to waive the Antideficiency Act. Nothing in the statute or its legislative history suggests that Congress intended a waiver of the Antideficiency Act, and AOC can give effect to both this language and the Antideficiency Act. DECISION The Architect of the Capitol (AOC) has requested our decision regarding whether participation in a multiemployer defined benefit plan could lead to a violation of the Antideficiency Act because of the possibility of withdrawal liability under the Employee Retirement Income Security Act (ERISA). Letter from Alan M. Hantman, Architect of the Capitol, to David M. Walker, Comptroller General, July 15, 2004. As we explain below, the Antideficiency Act prohibits AOC from participation in such a plan because the potential for withdrawal liability could subject the government to an indeterminate and costly liability that extends into future years, for which appropriated funds may not be available. Although Congress directed AOC to take all steps required to pay fringe benefits to its temporary employees "notwithstanding any other provision of law," this language does not waive the Antideficiency Act. BACKGROUND The Architect of the Capitol has followed the practice of hiring, on a temporary basis, tradesman employees who are members of unions. [1] In 2001, concerns arose over AOC's long-term use of these temporary employees and the fact that these employees did not enjoy the same eligibility for health, retirement, and insurance benefits as other federal employees. H.R. Rep. No. 107-169, at 16 (2001). Congress, therefore, included a provision in AOC's fiscal year 2002 appropriation that directed AOC to ensure that its temporary employees were eligible for fringe benefits, including life insurance, health insurance, and retirement. [2] Legislative Branch Appropriations Act, Fiscal Year 2002, Pub. L. No. 107-68, 133(a), 115 Stat. 560, 581-2 (Nov. 12, 2001). In response to this mandate, AOC converted 101 temporary employees, at their request, to federal wage grade positions, which enjoy the same eligibility for benefits as other federal employees. [3] Currently, 57 percent of AOC's tradesman employees receive federal benefits. However, there are approximately 85 employees who have elected to remain in temporary appointments and thus are ineligible for federal benefits. For these employees, AOC sought to implement section 133(a) by making payments directly to their unions' benefit trust funds, but was concerned that a 1977 decision by the Comptroller General would prohibit such transfers. [4] However, in a December 2001 decision, we concluded that section 133(a) provided AOC with the appropriate authority to transfer fringe benefit payments directly to union employee benefit trust funds. B-289496, Dec. 21, 2001. In 2003, Congress amended section 133(a) by adding a new paragraph (4) that explicitly directs AOC to make such contributions for benefits to "any third party designated to receive such contributions on behalf of the employees under a collective bargaining agreement, participation agreement, or other arrangement entered into by the Architect." Legislative Branch Appropriations Act, 2004, Pub. L. No. 108-83, 1101(a)(2), 117 Stat. 1007, 1027 (Sept. 30, 2003) (amending 133(a) of Pub. L. No. 107-68). Congress also directed AOC to "take all steps which may be required" to implement section 133(a), "notwithstanding any other provision of law." Pub. L. No.