Decision on the approval of transactions concluded based on the results electronic auction, is prerequisite accreditation. Representatives of the company must present the document to the operator trading platform. Gaining access to tenders is directly related to the inclusion of a certified copy in the unified information register.

In practice, the participants have a huge number of questions. Professional lawyers answered the most common of them.

How many decisions do you need to make?

The mention of documents with similar names is also contained in 66 of the law. Assessing the legal norms as a whole, experts came to the conclusion that these papers are independent. The procurement participant is obliged to submit two decisions:

1) Approval of transactions based on the results of an electronic auction

The requirement to draw up a document was introduced by part 4 of article 62. As a condition for validity, the law calls the establishment of the maximum price of the contract. The document must be submitted in digital format at the registration stage. The auction commission checks for its presence in the register during the evaluation of the second parts of the bids. At the same time, content analysis is carried out.

2) Approval of major transactions

The presence of this solution in the application suite provides. The requirement is made when classifying an order as a major transaction. The document must contain information on obtaining the consent of the founders to the specific terms of the contract.

Thus, the first concept is broader. Including the consent of the founders to conclude an agreement in the general package, the participant does not duplicate the registry information. He only clarifies and concretizes it.

What is considered a major deal?

The answer to the question depends on organizational form participant. So, for example, for a company of a joint-stock type, or a limited liability company, this figure will be equal to 25% authorized capital. Unitary enterprises should adhere to the bar of 10% of the fund or 50 times the minimum wage.

According to a single rule, the decision on approval is made at a meeting of owners. If the number of participants is 2 or more, the protocol is also mandatory. It reflects the turnout, the issues considered and the voting process.

It is not necessary to obtain the consent of the founders for a specific order in two cases:

• the transaction is not large for the procurement participant;
• approval is not required by law.

Practice on this issue in Russia has already been developed. Both acts of the antimonopoly service and court cases can be considered as precedents.

Important! The direction of the decision to approve the transaction unnecessarily leads to the rejection of the application. A striking example is the process in the Tver OFAS RF No. 05-6/1-133-2014, which ended on July 10, 2014.

Briefly about the content and form

If the procurement information card contains a requirement to provide a decision, the document in the register should not contradict its content. For example, setting the maximum price of a contract concluded as a result of an electronic auction at 10,000,000 hinders participation in the competitive race for an order worth 10,000,001 rubles.

Among the mandatory information specified in the decision, the legislator calls:

• Name;
• date and place of acceptance;
• the exact name of the organization;
• the composition of the founders;
• contract price;
• list of beneficiaries;
• the names and details of the parties;
• terms, as well as other conditions;
• owner's signatures.

In conclusion, we recall that the representatives legal entities form rules must be followed. Business companies operating in accordance with Law 14-FZ must provide notarization.

It happens that the customer rejects the application of the participant for failure to submit a decision on the approval of a major transaction. Is the customer right? When can a deal be considered a major deal? What to consider when preparing to participate in public procurement, so as not to get into a similar situation?

Big deal for a joint stock company

The procurement participant is a joint-stock company. When submitting an application, he did not attach to it the decision to approve a major transaction, believing that this transaction was not major for him. The Employer considered the failure to provide such a decision as grounds for rejecting the application. Who is right, the customer or the supplier?

To understand this situation, one 44-FZ is not enough. According to paragraphs. "e" p. 1 h. 2 art. 51 No. 44-FZ, the participant's application must contain a decision on the approval of a major transaction, if this requirement is established by the legislation of the Russian Federation, constituent documents, and such a transaction is major for the participant. So, if the deal is not a major deal for the participant, a decision to approve a major deal is not required? How do you know if it's a big deal or not?

Let us turn to the Federal Law of December 26, 1995 No. 208-FZ “On joint-stock companies».

For a joint-stock company, a transaction that amounts to 25% or more of the book value of the company's assets is a major one (part 1 of article 78 No. 208-FZ). The book value is determined from the data financial statements as of the last reporting date. The exception is transactions made in the course of a regular economic activity. Again the question is: who will determine whether this is an ordinary activity or not? The customer can establish this from the analysis of the constituent documents of the participant.

It turns out that if the customer concludes that the transaction does not relate to the participant's normal business activities, then he will have the right to reject the application for failure to submit a decision on the approval of a major transaction.

Law No. 44-FZ does not require the submission of supporting documents or declarations that the transaction is not large.

In practice, the Federal Antimonopoly Service of Russia, the Ministry of Economic Development of Russia and arbitration courts agree that the rejection of an application due to the failure to submit a decision to approve a major transaction is illegal. However, there are other court decisions that recognize the rejection of the application as legitimate.

Participants may be advised to avoid such situations. If it is not possible to establish from the content of the documents that the transaction relates to the ordinary economic activity of the participant, or that the transaction for the amount of the contract price is not a major transaction, a decision on the approval of a major transaction should be prepared and attached to the application. Preventive measures are usually more effective.

A society consisting of one member was refused

A participant, a business entity consisting of one participant, which simultaneously performs the functions of the sole executive body, did not submit a decision on approval of a major transaction as part of the application. The application was rejected. Is the customer right in rejecting such an application? Let's figure it out.

Law "On contract system» is the same for all, which means that paragraphs. "e" p. 1 h. 2 art. 51 No. 44-FZ: the participant's application must contain a decision on the approval of a major transaction, if this requirement is established by the legislation of the Russian Federation, constituent documents and for the participant such a transaction is a major one.

Is the deal a big one, will help sort it out the federal law dated February 8, 1998 No. 14-FZ “On Limited Liability Companies”.

A major transaction is a transaction that amounts to 25% or more of the value of the company's property. The cost is determined on the basis of accounting data for the last reporting period. The exception is transactions made in the ordinary course of business. The charter of the company may also provide for a higher size of a major transaction.

However, in accordance with paragraph 1 of Part 9 of Art. 46 No. 14-FZ “On Limited Liability Companies”, the requirements for the approval of major transactions do not apply to companies consisting of one participant who simultaneously performs the functions of the sole executive body of such a company.

The customer, having familiarized himself with the constituent documents of such a participant, should not reject his application. In practice, if such a participant disputes the actions of the customer in arbitration court, then the court takes his side.

And if the unitary enterprise was rejected?

Can the customer reject a participant (SUE, MUP) for not submitting a decision on the approval of a major transaction in the application? Yes maybe.

In accordance with Part 1 of Art. 23 No. 161-FZ "On state and municipal unitary enterprises» For a unitary enterprise, a major transaction is one whose value exceeds 5 million rubles. The decision to conclude such a transaction is made with the consent of the owner of the property of a unitary enterprise (part 3 of article 23 No. 161-FZ). This means that if the NMC of the purchase exceeds 5 million rubles, and the participant's application does not contain a decision on the transaction, then the customer has the right to reject such an application.

Arbitration courts often take the side of the customer in such cases. They believe that if it is established that the transaction is large for the participant, then the customer has the right to reject such an application of a unitary enterprise for failure to submit the required document.

Online course "": prepare for the conclusion of a state contract in electronic form

Auction Decision: Special Rules

Remember that when accrediting on an electronic site to participate in an auction, a decision on the approval of a major transaction must be submitted. Otherwise, the application will be rejected by the operator electronic platform. You should determine in advance for yourself the maximum amount up to which you plan to participate, and indicate it in your decision. If the amount of a specific auction in which participation is planned turns out to be higher, then it is necessary to attach an additional decision for the amount of this auction in the second part of the application. It is most correct to focus on the initial maximum contract price (IMCC) of the customer, because during the auction, the price may not drop to the amount you want.

Summarizing what has been said...

When preparing an application, the participant should be more attentive to his own constituent documents so that subsequently there is no ambiguity as to whether this transaction for a major participant.

The devil, as you know, is in the details... When considering the application, the customer should carefully study and analyze the constituent documents of the participant and think several times before rejecting the application for failure to submit a decision on a major transaction.

Leading to litigation is often unprofitable for both parties - disrupted procurement procedures, lost time, unconcluded contracts. Therefore, it is easier to prevent a problem from occurring than to solve it when it has already arisen.

At school electronic trading- this is professional retraining for suppliers and customers according to 44-FZ and 223-FZ. Online, with experts.

Separate transactions in an LLC must be concluded in a special order determined by law.
These include the so-called "big deals". If you do not follow the legislative procedure for making such a transaction, it may be declared invalid.

Before the company concludes a transaction, it should be checked whether it falls under the criteria of "major". And, if it falls, ensure that it is respected established by law requirements for her.

DEFINITION THE CONCEPT

Big deal- this is a transaction or several interconnected transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is 25 or more percent of the value of the company's property (Article 44 of the Law “On Limited and Additional Liability Companies” (dated December 6, 2001 No.N 310- II, hereinafter referred to as the LLC Law). Its commission must be approved by the general meeting of participants (or the supervisory board).

The lower limit (25%) of a major transaction may be increased by the charter of the company (part one - Article 44 of the LLC Law).

The law does not indicate in which cases several transactions can be recognized as interconnected and considered together as one large transaction.

Obviously, the risk of recognizing transactions as related increases significantly if:

transactions are homogeneous and made with the same persons in a short period of time;

property alienated or acquired under transactions is bound by a single technological process or a single purpose;

transactions are aimed at achieving uniform legal consequences or a common goal.

It is more likely that a transaction will be recognized as interconnected if several of the listed signs are simultaneously present.

The value of the property alienated by the company as a result of a major transaction is determined based on the data of the accounting statements for the last reporting period preceding the day the decision to approve the major transaction was made.

The value of the property acquired by the company is set on the basis of the offer price, which is usually specified in the contract (part two of Article 44 of the LLC Law).

Major transactions are not transactions that are made in the ordinary course of business of the company.

It is not always possible to prove that the transaction relates to the normal business activities of the company.

The law does not establish which particular transactions are related to the ordinary business activities of the company. However, it can be assumed that they include transactions aimed at making a profit from the sale of goods or products, the use of property, the performance of work, the provision of services, as well as those related to the acquisition of raw materials and materials. Since ordinary economic activity is understood as the activity of the company, prescribed in the charter and aimed at systematic profit.

Most likely, transactions that are not typical for society cannot be attributed to ordinary economic activity, such as:

contract of assignment of the right to claim;

pledge of movable and immovable property and issuance of a guarantee in order to ensure the fulfillment of obligations of third parties;

share assignment agreement authorized capital another society.

The approval of the general meeting of LLC participants may be required not only for the contract. The concept of a “deal” is broader than the concept of an “agreement”, therefore, a major transaction can be not only an agreement, but also payment of the authorized capital of another economic society, an amicable agreement, the introduction of funds as a security for the performance of the contract.

Preliminary agreement, supplementary agreement to the agreement, agreement on joint activities and other deals can also be large.

Is it necessary to approve the share purchase and sale transaction concluded between the participants of the LLC, if it complies with fixed size big deal? No. If the LLC participants have entered into an agreement for the sale of a share in the authorized capital of the company, then the LLC itself is not a party to such an agreement. Alienation of LLC property in this case does not occur. Therefore, such a contract is not subject to the requirements for a major transaction.

HOW TO MAKE BIG DEALS

As we have already said, the company has the right to make a major transaction only after its approval by the participants. If a supervisory board has been established in the company, then it can be entrusted with the authority to approve major transactions, the cost of the alienated (acquired) property for which is from 25 to 50 percent of the company's property (Part four of Article 44 of the LLC Law). If the company has one participant and he is not a director, his written consent is sufficient to approve the transaction.

A major transaction made without prior approval is not invalid in itself. As such, it may be recognized by the court at the request of the company or its participant (that is, the transaction is voidable on the basis of part five of article 44 of the LLC Law).

The decision to approve a major transaction must include the following information:

persons who are parties, beneficiaries of the transaction;

the subject of the transaction;

transaction price;

other essential conditions deals.

At the same time, it is necessary to take into account General requirements to the design and content of the decision of the general meeting of participants.

Is the company entitled to make a major transaction if several months have passed since the date of the decision on its approval? Yes. The term of validity of the decision to approve a major transaction is not limited by law. That's why big deal, completed after long time from the date of the decision, is legal.

Prepared by Elena ERMOKHINA, our legal expert.

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, the legislator established a requirement for approval (obtaining consent to commit) major transactions by the company.

What is a big deal?

Law No. 208-FZ "On Joint Stock Companies" and Law No. 14-FZ "On Limited Liability Companies" establish the following criteria for classifying a transaction as a major one.

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. At the same time, in an LLC, this issue should be 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.

If the company is owned by one person, then the decision on a major transaction of the sole founder is taken by him alone. Then a decision is made sole member on the approval of a major transaction or a similar decision of the sole shareholder.

The decision on consent to the conclusion (or a sample decision on the approval of a major transaction) must contain an indication of:

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

At the same time, the parties and the beneficiary may not be indicated if it is concluded at the auction (here you will need a sample decision on a major transaction - 44-FZ), as well as in other cases, if the party and the beneficiary cannot be determined by the time consent is received.

A sample decision to approve a major transaction may also contain: an indication of the minimum and maximum parameters of the conditions (the upper limit of the purchase price of property or the lower limit of the cost of selling property) or the procedure for determining them, consent to a number of similar actions, alternative options for conditions (for example, consent to the performance of such an operation, subject to the performance of several at the same time).

A sample decision on a major transaction may 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) of a public company on the terms stipulated by the mandatory offer to acquire shares;
• in a number of other cases.

What is a major deal and in what cases it may be needed, find out from the article. Here is a sample decision on the approval of a major transaction, depending on the form of organization.

What is a big deal

Let us turn to the relevant laws in order to understand what a major deal is. Federal Law No. 161-FZ of November 14, 2002 "On State and Municipal Unitary Enterprises" states that a large operation is one that involves the acquisition or sale of property in an amount exceeding 10% of the authorized capital of an enterprise or in an amount 50 thousand times exceeding minimum size wages.

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Federal Law No. 14-FZ of February 8, 1998 "On Limited Liability Companies" defines major transactions that:

• associated with the purchase or alienation of any property (including loans, credits, collateral, etc.), the book value of which exceeds 25% of the value of the company's assets;
• associated with the transfer into temporary possession or the granting of rights to use the result of intellectual activity or means of individualization under a license, if their value is more than 25% of the value of the organization's assets.

At the same time, the Federal Law states that these provisions are not applicable to companies in which there is only one participant, and to contracts, the execution of which is mandatory in accordance with the orders of the Government and other regulatory legal acts.

Also, the federal law gives the concept of transactions that do not go beyond the limits of normal economic activity. These are agreements that are often made by enterprises in this field of activity and which do not lead to a significant change in the size of the organization. Federal Law of December 26, 1995 No. 208-FZ "" gives the same definition of the COP as.

When do you need a decision to approve a major transaction?

According to Law No. 44, this document may be needed in two cases:

• when applying. The decision must be provided if it is required by law, founding documents of the participating organization, and when the price of the agreement/contract for LLC or JSC falls within the definition of the CC;

Procedure for making a decision to approve a major transaction

The approval procedure also depends on the type of enterprise and the number of its founders. In municipal unitary enterprises and state unitary enterprises, such decisions are made with the consent of the owner of the property of the enterprise.

In the case of JSCs, the members of the board of directors or the general meeting of shareholders are responsible for approval. The procedure depends on the value of the property:

• if the price of the property is between 25 and 50% of the value of the company's assets, it is necessary that the consent is given by each member of the board of directors. If it was not possible to achieve this, the issue is put on the agenda of the meeting of shareholders and decided by a majority of votes;
• if the price of the property is more than 50% of the value of the company's assets, consent to approval must be obtained from ¾ of the votes of shareholders on general meeting. At the same time, the decision should indicate: the price of the transaction, its subject, the benefit of the company, the parties, the duration of the decision.

Note that if the validity period of the approval is not specified, then the document is considered valid for a year.

In an LLC, the decision on a major transaction is made by the general meeting of participants. If it is concluded at the end of the auction, then the document may not indicate its side and the beneficiary. However, the price, the subject of the transaction and other essential conditions, including minimum and maximum parameters, alternative options for conditions, etc., must be specified. If any of the participants is interested in the procedure, then the decision is made by a majority vote of non-interested participants.

We list the consequences of a major transaction without approval. It may be declared invalid if a member of the board of directors or one of the shareholders applies to the court with a claim. In this case, the court will not cancel the procedure if:

• evidence will be provided that approval has been obtained;
• there is evidence that the other party knew, or should have known, that the deal is major for the entity and that there was no proper consent to proceed with it.

Major Deal Approval Decision Sample

The sample solution depends on how many founders there are in the organization. First, let's look at how to write this document for an LLC with only one founder. The decision must be printed on letterhead and indicate in it:

• Company name;
• Full name, passport details, address of the founder;
• approval of the conclusion of a specific agreement/contract;
• the maximum possible amount of one major transaction;
• signature and seal.

If the organization has several founders, it is necessary to hold a meeting of participants and draw up a protocol based on its results. The following data is entered into it:

• Full name of the founders with indication of shares in the authorized capital;
• Full name of the director;
• approval of transactions on behalf of the organization;
• an indication of the maximum possible amount of a major agreement;
• signatures of the director, chairman and secretary of the meeting.

The procedure for deciding whether to approve a major transaction may vary. It depends on a number of factors: the organizational and legal form, the number of founders, the presence of interest of one of them, etc. In JSCs and LLCs, the issue is resolved at a meeting of the company's members or at a general meeting of shareholders.

If the transaction is large for the organization, then you will need to provide this document in 2017:

• when applying;
• when accredited to the ETP.

You will find answers to the most interesting questions about procurement in the new issue of the State Order in Questions and Answers magazine.