Approval of a major transaction 44 fz sample. Peculiarities of execution of the decision on the approval of a major transaction. What is the big deal

A deal will be considered a major deal if it goes beyond the usual economic activity and at the same time associated with the purchase or sale of property joint-stock company(more than 30% of shares) or provides for the transfer of property for temporary use or under a license (clause 1 of article 46 No. 14-FZ). Moreover, in both cases, the price of such operations must be at least 25% of the book value of the assets of a limited liability company (LLC).

If required, they approve major agreements in accordance with the legislation of the Russian Federation (14-FZ, 174-FZ, 161-FZ, etc.) or according to the rules established in the Charter of the procurement participant. In other cases, this is done by the supplier's representative authorized to obtain accreditation at the ETP.

In an LLC, approval is the responsibility of the general meeting. If the organization has a board of directors, then on the basis of the Charter, the adoption of agreements on such operations can be transferred to its jurisdiction.

On June 26, 2018, the Supreme Court issued a Resolution of the Plenum, in which it analyzed the main disputes over the approval of major transactions and agreements in which there is an interest.

Download Resolution of the Plenum of the Supreme Court No. 27 dated 06/26/2018

When is such approval required in the contract system?

To start participating in public procurement, you need to register in the EIS. To do this, provide a common package of documents, which includes the consent to the transaction. Moreover, this is always required, including when the purchase does not belong to the category of large ones. As for suppliers who were accredited before 12/31/2018, they are required to register with the EIS by the end of 2020. Both of them will need an up-to-date sample decision on a major transaction 44-FZ.

Information must also be included in the second part of the application, if required by law or constituent documents, and also when both the provision of the contract or application, and the contract itself will be large for the participant. In the absence of this information, the candidate may be rejected at any stage before the conclusion of the contract. The auction commission of the customer is responsible for verifying the data (clause 1, part 6, article 69 No. 44 of the Federal Law).

It is important to note that individual entrepreneurs, unlike LLC, do not belong to legal entities. Therefore, they are exempted from the obligation to submit such a document for accreditation at the ETP.

Important change for 2020

But it is not necessary to include this information in the second part of the application. It is considered that if the supplier has not provided such data, then the conclusion of the contract does not fall into the category under consideration. But, as practice shows, even the decision of a single participant to approve a major transaction, just in case, is attached to the general package of documents. It is important not to make a mistake here. Otherwise, there is a risk of rejection of the auction participant due to the fact that he provided false information. Such cases are disputed by the Federal Antimonopoly Service, but the period for concluding a contract increases.

What to look for when compiling: form and content

First of all, it should be noted that in the legislation of the Russian Federation there is no single model of approval. But paragraph 3 of Art. 46 No. 14 FZ explains that such a document should indicate:

A person who is a party to an agreement and a beneficiary.
Price.
Subject of the agreement.
Other significant conditions or the order in which they are determined.

The beneficiary may not be indicated if it is impossible to determine it by the time the document is agreed, and also if the contract is concluded as a result of the auction.

At the same time, Art. 67.1 of the Civil Code of the Russian Federation establishes that the decision made by the executive bodies of an LLC must be confirmed by a notarized certificate, unless another method is provided for by the Charter of such a society or by a decision of the general meeting, which was adopted unanimously by the participants.

P. 4, Art. 181.2 of the Civil Code of the Russian Federation fixes the list of information that must be reflected in the decision of the in-person meeting of the founders. The protocol requires the following information:

date, time and place of the meeting;
persons who participated in the meeting;
results of voting on each item on the agenda;
the persons who counted the votes;
persons who voted against the approval of the agreement and requested that a record be made of it.

It happens that customers reject a participant if the decision indicates the total amount of approved transactions, and not each agreement separately. Therefore, we recommend using the wording “Approve the transactions on behalf of the Limited Liability Company “_______________” based on the results of the procedures for the procurement of goods, works, services. The amount of each such transaction shall not exceed the amount of ____________ (_____________) rubles 00 kopecks.”

komdir

When accredited for trading floors each participant is faced with the problem of providing a scan of the “Form of the decision on the approval of a major transaction on the EP”.

1. Major Deal Approval Decision for Electronic Marketplaces

At the stages of obtaining accreditation for the EP and during the action of submitting an application that is needed to participate in open competition, then the participant must provide this form. You can take part in an electronic competition if you have this permission, 44 of the Federal Law states this. Under this law, without major transaction approval decisions, then it will not be possible to participate in electronic procedures is prohibited.

2. Approval of a major transaction 44 FZ

The required document can be as different options, the number of founders of the company will be of great importance in this case. Subject to how many founders the company will have. Will it have one or two founders, or maybe more, then the document will be called “Large Deal Approval Protocol”

The decision to approve the transaction may be the main component of the application, which is needed to participate in the tender. In this case, you will also need to provide a scan of this form. That is, the procedure will be the same as with.

Still have questions about preparing a decision on the approval of a major transaction for EP?

We employ only qualified specialists who are always ready to help you!

3. Decision on the transaction

In order to be able to participate in the competition, you will need this permission. Provided that the transaction will not be large for the tender participant, then you can simply attach a certificate stating that the transaction was not large. In all other cases, decisions on a major transaction must be attached.

The most frequently asked questions that participants ask is the question of what amount should be noted in the very decision to approve a major transaction. The answer to this question is very simple. You can mark any amount, but only it should be no more than the amount for which you will be ready to conclude a contract as a result. Basically, this amount is noted in the amount of several hundred million rubles. This amount will not force you to do anything.

Provided that the amount that you indicated earlier was lower than necessary to participate in the competition. Such situations are always correctable, you can draw up a new form, and after it is drawn up, they need to be placed on the ETP.

4. Decision on approval of a major transaction LLC sample

Below you can see “Form of a decision to approve a major transaction on an electronic platform”. This form fully complies with all laws and can be used in electronic procedures.

The decision to approve a major transaction in the context of public procurement is a document that establishes the maximum amount of a contract that a supplier can conclude.

Big deal- this is a transaction that is more than 25% of the book value of the company's assets as of the last reporting date (for a quarter or a year, depending on the type of taxation of the company).

In procurement under 44-FZ, legal entities must provide this decision included in the documentation. Individual entrepreneur not required to provide it. With regard to commercial procurement, the decision to approve a major transaction is required at the discretion of the purchaser.

If the company has a single founder, then it is necessary to attach a decision on the approval of a major transaction. If there are several founders, then the Protocol on approval of a major transaction is the supporting document.

The decision / Protocol on the approval of a major transaction is uploaded during the registration process in the EIS. After that, this information is transmitted to all state electronic platforms. But if an error is made in the document, it will only be discovered during the application process. In advance, neither the EIS nor the operator electronic platform does not check the correctness of filling in the information in the decision to approve a major transaction.

sample and when required

The decision of the sole participant on the approval of a major transaction is drawn up if the founder of the company is one. He fills out the form on his behalf and attaches it to the EIS.

There are situations when a procurement participant attaches a decision on the approval of a large transaction for one amount, but then wants to participate in the procurement, the NMCC of which is more than the limit specified in the document. In this case, it is necessary to re-draw up a decision on the approval of a major transaction for a different amount and back it up in the EIS, indicating the new transaction amount in your personal account.

Usually, such a document is immediately prepared in advance for a large amount (for example, a billion rubles) in order to avoid the need to update the decision to approve a large transaction.

You can see a sample decision below, this option is general and is suitable for attaching to the EIS.

Sample Major Deal Approval Minutes

If the company has several founders, then a “Protocol on approval of a major transaction” is prepared. An example of this document can be seen below:

Assistance in the preparation of documentation

If you need help with registration in the EIS and preparing all the necessary documents for this, you can contact the specialists of our company. For more than a year, we have been successfully registering in a single information system, preparing and attaching the necessary correctly completed documents and, to the maximum short time we help the participant to get into ERUZ.

You can download samples from these links: Decision / Protocol.

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The decision on a major transaction for bidding is a document that is taken by the sole founder, the board of directors or a meeting of shareholders. It indicates the maximum allowable cost of the operation. The requirement for approval (obtaining consent to make) by the company of such transactions has been established by the legislator to protect the shareholders of the company, and in the case of an LLC, the members of the company from unfair or imprudent actions of the head.

What is a big deal?

Law No. 208-FZ "On Joint Stock Companies" and Law No. 14-FZ "On Limited Liability Companies" establish criteria for classifying a transaction as a major one. For such transactions, a decision is made to approve a major transaction. The criteria are:

1. If it goes beyond the normal business activities, for example:

not accepted in the activities of the company or other companies that have assets of similar size and turnover volumes (clause 6 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 16, 2014 N 28);
leading to the termination of the activity of the organization, a change in its type or a significant change in its scale.

2. If its nature is related to:

acquisition or alienation of property (for example, purchase and sale, loan, credit, exchange);
the possibility of alienating property directly or indirectly (for example, pledge, guarantee);
transfer of property for temporary possession and (or) use (for example, rent);
granting the right to use the results of intellectual activity or means of individualization under a license.

3. If the value of the property under the operation is 25% or more of the book value of the assets.

The value of the property in this case is determined on the basis of its nature and can be determined by the price, amount market value or the carrying value of the property. In case of doubt, it is recommended to take the maximum possible rating in order to avoid later contesting the transaction.

Who decides on consent to commission (on approval)?

It depends on two conditions:

Does the company have a board of directors?
What is the ratio of property value to the book value of assets.

The decision on approval is made by the Board of Directors (if any) in the event that the value of the property is from 25 to 50% of the book value of the company's assets. In an LLC, this issue is referred to the competence of the Board of Directors by the charter of the company.

In all other cases, consent is expressed by the supreme governing body - the general meeting of shareholders (or participants - for LLC) of the company.

From November 15, 2020 in accordance with federal law No. 356-FZ of 04.11.2019, shareholders and participants of an LLC, controlled by persons interested in the transaction, are prohibited from voting for the approval of the transaction!

Consent is made by protocol.

If the company is owned by one person, then the decision on a major transaction of the sole founder is taken by him alone.

The decision on consent to commit must contain an indication of:

sides;
beneficiaries;
price;
thing;
and other essential conditions or the procedure for their determination.

At the same time, the parties and the beneficiary have the right not to be indicated if it is concluded at the auction under 44-FZ and in other cases if the party and the beneficiary cannot be determined by the time the consent is received.

The document includes an indication of the minimum and maximum parameters of the conditions (the upper limit of the value of the purchase of property or the lower limit of the value of the sale of property) or the procedure for determining them, consent to a number of similar actions, alternative options for conditions (for example, consent to such a transaction subject to several at the same time).

The decision shall indicate the period during which it is valid. If the term is not specified, the consent is considered valid for one year from the date of its acceptance, except for cases in which a different term follows from the nature and conditions of the transaction for which the consent was given, or the circumstances in which the consent was given.

When is approval not required?

Consent is not required for approval if:

the company consists of one participant (shareholder), who is simultaneously the only person with the powers of the sole executive body;
the relationship arose during the transfer to the company of a share or part of a share in its authorized capital;
the relationship arose in the process of reorganization (merger and acquisition);
shares are acquired (other issue securities convertible into shares) public society on the terms stipulated by the mandatory offer to acquire shares;
in a number of other cases.

In accordance with the requirement of Article 51 of Law No. 44-FZ (part 2, clause 1, subparagraph “e”), an application for participation in a tender in certain cases must contain decision to approve a major transaction. This document must be attached when such a decision is required by law or the constituent documents of the participant. At the same time, both the cost of the transaction itself, that is, the supply of goods, the provision of services or the performance of work, and the amount of security for the application or contract are assessed.

In the absence of a decision to approve a major transaction in the event that it should be presented, the contracting authority may reject the participant's application. When should suppliers and contractors submit such a decision? What needs to be checked by the customer in order not to groundlessly reject the application? Let's consider these questions in more detail.

What is the big deal

The conditions for recognizing a transaction as a major one are established by law and differ depending on the type of transaction. legal entity. It is worth noting that, regardless of the type of organization, not only one operation, but also several interconnected ones can be classified as large transactions.

Registration in ERUZ EIS
From January 1 2020 years to participate in auctions under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ registry (Unified Register of Procurement Participants) on the EIS portal (Unified Information system) in the field of procurement zakupki.gov.ru.
We provide a service for registration in the ERUZ in the EIS:

For a budgetary institution (BU) a large transaction is considered, the price of which exceeds 10% of the book value of assets as of the last reporting date. Such a transaction can be carried out only with the permission of the body that has the powers and functions of the founder of the BU. Such a requirement is established by paragraph 13 of Article 9.2 of Law No. 7-FZ “On Non-Commercial Organizations”.

And here for unitary enterprises a big deal is a deal worth from 5 million rubles . This rule is established by Part 1 of Article 23 of Law No. 161-FZ “On State and Municipal Unitary Enterprises”. The owner of the property of the SUE or MUP must approve a major transaction on the basis of part 3 of this article.

For joint-stock companies (JSC) and limited liability companies (LLC) big deal is 25% or more of the value of the LLC's property or JSC's assets . The value of property (assets) is determined according to the data financial statements for the last reporting period. The legislative act establishing the conditions for recognizing a transaction as a major one for joint-stock companies is Law No. 208-FZ, and for limited liability companies - Law No. 14-FZ. Note that the charters of JSC and LLC may provide for other sizes and conditions for recognizing a transaction as a major.

With regard to joint-stock companies and LLC, the legislation makes a reservation - large transactions are not considered transactions made in the course of the ordinary business activities of companies . Because of this, the question of recognizing a transaction as a major one does not always have an unambiguous answer for them.

Major deal approval

Approval of a major transaction of a joint-stock company in accordance with Article 79 of Law No. 208-FZ is accepted board of directors (supervisory board) or general meeting shareholders.

The decision regarding major LLC transactions must be made general meeting of participants(Article 46 of Law No. 14-FZ). At the same time, a company consisting of one participant, who is the sole executive body, on the basis of paragraph 1 of part 9 of this article, is not obliged to submit a decision on the approval of a major transaction.

Position of officials and courts

The Ministry of Economic Development and the Federal Antimonopoly Service believe that rejecting an application on the basis of the absence of a decision to approve a major transaction is illegal.

If there is no such decision in the documents, it means that the transaction is not major for the participant. At the same time, Law No. 44-FZ does not require suppliers and contractors to document the fact that the transaction for them does not belong to the category of large ones. This position is supported by the majority of arbitration courts.

However, with regard to non-profit organizations or unitary enterprises arbitrage practice suggests that it is often legitimate to reject an application on the basis indicated. In this case, the law clearly stipulates the criteria for a transaction that is recognized as a major transaction for these organizations. And if, going to participate in such, SUE, MUP or state-financed organization does not apply its approval, then this is a violation of the law.

How to be a customer and a participant?

Before rejecting a bidder's application on the basis of a failure to approve a major transaction, the tender committee should check the following:

whether such a requirement is established by law for this type of organization;
whether the amount of the transaction is really large for the participant.

If from the constituent documents of JSC or LLC it is impossible clearly establish whether or not the transaction relates to their normal business activities, then on the basis of the absence of a decision on its approval rejection is not recommended.. In this case, the participant with a high degree of probability can cancel the decision of the competition commission through the FAS or the court.

To avoid such situations, participants can be advised only one thing - to attach the specified solution to the documentation. This is faster and more efficient than facing rejection of the application and challenging the decision of the competition commission. When referring a transaction to the category of large, unitary and budgetary organizations should be guided by its size, and commercial organizations should also take into account the fact whether the operation is normal for their business activities or not.