The DOL released Field Assistance Bulletin 2007-1 (the “FAB”) late last week. This FAB provides guidance with respect to the statutory exception to the prohibited transaction rules under ERISA and the Tax Code for certain participant investment advice arrangement made by the Pension Protection Act of 2006 (the “PPA”). Even though guidance with respect to eligible investment advice arrangements is not finalized, the FAB’s guidance on selection of a fiduciary adviser under such an arrangement is also useful guidance for plan sponsors and other fiduciaries with respect to selection and monitoring of other types of fiduciaries and service providers.
Briefly, an “eligible investment advice arrangement” enables a plan sponsor to retain a fiduciary adviser to advise participants with respect to direction of investment under a defined contribution plan. The arrangement must meet several requirements, and either (a) provide that any fees, commissions or other compensation received by the adviser do not vary on the basis of any investment option selected, or (b) use a computer model in connection with providing investment advice. The DOL states that if a plan sponsor prudently selects and monitors the fiduciary adviser, then the sponsor will not be liable for the advice furnished by the adviser to the plan’s participants.
In selecting a fiduciary advisor, the plan sponsor should consider the following:
- the adviser’s experience and qualifications, including registration under applicable federal and/or state securities laws;
- the adviser’s willingness to assume fiduciary status with respect to the investment advice provided to participants; and
- the extent to which the advice will be based on generally accepted investment theories.
Under ERISA, a plan sponsor or fiduciary who appoints another fiduciary or other service provider also is responsible for ongoing monitoring of the appointment. Ongoing monitoring should take into account the following:
- the extent to which any information that served as the basis for initial selection of the advisor has changed;
- whether the adviser is complying with the contractual provisions of its engagement;
- utilization of the adviser’s services by participants in relations to the plan’s cost for such services; and
- participant complaints and comments about the quality of the advice provided.
The FAB also makes it clear that plan assets may be used to pay reasonable expenses for providing investment advice to participants.