Too Much Disc. Match

[DTH]

Plan provides for a discretionary match. At the plan's inception there was a Board of Director's resolution limiting the match of 50% of deferrals up to 5% of comp. The match formula is also disclosed to EEs every year in the company newsletter. In 2004 payroll did not cap the 5% of comp. This affects HCEs and NHCEs.

Is this considered an operational defect where the affected Ps will loose the match or can you give the additional match because the plan provides for a discretionary match? (See message board Q&A from March 9, 2002 - Correction of Error in computing Matching Contribution.)

Additionally, someone one suggested running a 401(a)(4) availability test. If it passes it would be okay to leave the additional match contribution in plan. I never heard of using this in an operational defect situation. Anyone ever heard of this?

Thanks!