Approval of a major transaction 44 fz sample. What is a big deal. How to make big deals

Recently, new requirements for the execution of a decision or protocol on the approval of a major transaction have come into force. For LLCs, they are established by the new version of Law No. 14-FZ, and for JSCs - by the new version of Law 208-FZ

Recently, new requirements for the execution of a decision or protocol on the approval of a major transaction have come into force. For LLCs, they are established by the new version of Law No. 14-FZ, which entered into force on September 1, 2017, and for JSC - by the new version of Law 208-FZ, which is effective from July 30, 2017. These laws have established a new requirement: the period of validity of the decision/protocol on the approval of a major transaction must be specified. If such a period is not set, the default decision will be valid for a year from the date of its adoption. The material offers for downloading ready-made forms of these documents in the MS Word format.

What is the difference between a major deal decision and a protocol?
The decision to conclude a major transaction has the right to be taken by the sole participant (founder) of the LLC. In contrast to the decision, the minutes are drawn up at the general meeting, if the LLC or JSC has several owner-participants. The minutes must indicate the chairman and secretary of the meeting, the presence of a quorum for a decision. These are the main differences. For brevity, the term "solution" is used throughout this article.

Why do participants need a decision on a major deal?
First of all, it is required for accreditation for 6 electronic trading floors(part 2 of article 61 of Law No. 44-FZ), as well as on many commercial ones (in accordance with the regulations of such ETPs).
Secondly, when applying for participation in electronic auctions (clause 4, part 5, article 66 of Law No. 44-FZ). When transferring the second parts of the applications to the customer, such a decision or protocol is automatically transferred to the Customer from the documents posted on the ETP during accreditation. However, when submitting an application, any participant can attach an up-to-date transaction approval document, which will also go to the customer for consideration. In this case, the document with a later date will have legal force.
Thirdly, when submitting an application for participation in an open tender (paragraphs “e” of part 2 of article 51 of Law No. 44-FZ) or in a closed auction (paragraphs “e” of part 2 of article 88 of 44-FZ),
Fourth, such a decision is required by banks when considering an application for issuing a bank (independent) guarantee to participate in a tender or to fulfill their obligations under a contract/agreement.

How do changes in laws affect procurement participants?
1. A participant may be denied accreditation to the ETP. At the same time, you will have to wait for a second decision on accreditation (up to 5 working days - part 4 of article 61 of Law No. 44-FZ), and during this time the submission of applications for a “tasty” tender may already end.

2. Rejection of the submitted application for participation in electronic auction, open competition, closed auction. Since it was not previously specified how long the decision, the customer approached the consideration of such a decision quite formally, by and large checking its existence and the amount of the permitted transaction, and could not reject the application if more than a year had passed from the date of the decision / protocol on a major transaction.

What should be done now?

1. Check if the validity period is specified in your decision or minutes of a major transaction.

2. If the validity period is not specified, draw up a new protocol of the extraordinary meeting of participants and indicate the decisions taken in it. If the owner of the organization is one, he alone makes such a decision.

3. Make changes to the documents of your organization on each ETP - delete or mark as irrelevant the previous solution and upload a new one.

4. If no changes have been made, a new decision must be attached to each submitted application.

Ways to make a decision

According to paragraph 3 of Art. 67.1 of the Civil Code of the Russian Federation, the adoption of a decision by the general meeting of participants in the company and the composition of the participants in the company who were present at its adoption are confirmed by:

1. Notarization (almost impossible in practice and expensive).

2. By the method of confirming the adoption of the decision specified in the Articles of Association (hardly indicated in most Articles of Association of companies).

3. The method of confirming the decision, specified in a specific decision (optimal), or indicated in a separate decision. At the same time, one of the items on the agenda must be the question "On the choice of a method for confirming the adoption of decisions on all issues on the agenda." Then, in the decision itself on the agenda items, indicate the chosen method (for example, “It was decided: to determine as a method of confirming the adoption of decisions by the extraordinary general meeting of LLC participants and the composition of the LLC participants present at their adoption - the signing of the protocol by all participants of the LLC”.

From practice: it is desirable not to indicate the specific names of ETPs and their websites in the decision. They change quite often, which leads to the rejection of applications on formal grounds, for example:

“A decision has been attached to approve or conclude transactions based on the results of auctions held on the electronic platform of the ETP MICEX “Goszakupki” www.etp-micex.ru. The operator of the National Electronic Platform www.etp-ets.ru is Joint Stock Company "Electronic Trading Systems" (JSC "ETS"). It is necessary to indicate the correct name of the operator of the electronic platform. You can correct your application and submit it for reconsideration.

“Clause 5 of the decision to approve or to conclude transactions on behalf of the supplier based on the results of the auction: In the attached decision, you need to correct the name of our site - JSC "Unified Electronic Trading Platform", and not OJSC (since September 7, 2015, our ETP was renamed from OJSC to AO)."

Is it necessary to indicate the method of public procurement in the decision on approval of transactions for accreditation?

The Arbitration Court of the Moscow District, in its Resolution dated 06/29/2017 in case N A40-132329 / 2016, explained that the procurement participants do not have such an obligation. If the procurement method is named in the application for accreditation, the operator of the electronic site is not entitled to refuse it.

Although the court upheld the participant in this case, it is better to reduce the risk of accreditation being denied in advance. To do this, we recommend that in the decision to approve or conclude transactions based on the results of procurement, the methods for conducting them are indicated: “including an electronic auction”.

Who has the right to participate in procurement without a decision on major transactions?

It is not required to attach a decision to the application:

1. Individual entrepreneurs. For them, the procedure for approving transactions is not provided for by law.

State employees, in turn, are burdened with additional obligations to the state, which means that the execution and execution of a major transaction is somewhat different from the algorithm for commercial structures. But how to approve a major deal in a public institution?

The first difference is the determination of the size of the transaction, that is, the calculation of the maximum amount, starting from which, the purchase will no longer belong to a simple category, but to a major transaction. For state employees, specific volumes are determined. Thus, one is recognized as large, the value of which exceeds 10% of the book value of the property and assets of the institution, and its key content is the disposal in cash, transfer of property (assets) for use or on bail, or complete alienation of assets, property.

Pay attention to two key conditions:

1. Not only a single purchase can be recognized as large, but also several interconnected ones at once.
2. The cost limit may be lower if such a condition was spelled out in the constituent documents budget institution.

The book value of the assets and therefore the 10% threshold for the value of a major transaction for each institution are determined on a case-by-case basis. The data is formed on the basis of the annual financial statements institutions for the previous year (account balance sheet data - line 410 of column 10 f. 0503730).

So, for example, the book value of assets at the reporting date may be 500,000 rubles, and therefore, for this institution, any contract worth 50,000.01 rubles or more will be considered a major contract. In other words, such an organization will have to coordinate literally every step with the founder.

If the operation meets the requirements specified above, then its commission is impossible without the appropriate approval from the founder. This is the second exceptional feature for state employees.

So, in order to obtain approval, you will need to send the appropriate package of documents to the address of the body exercising the functions and powers of the founder. Please note that this body must be endowed with appropriate powers, otherwise it will be necessary to redirect the application for approval to higher structures.

Why and when a document is needed

It is important for a budgetary organization that acts as a procurement customer to know that the proposals received during the procedure are agreed with executive bodies supplier (meeting of founders, board of directors, etc.). This requirement is due to the fact that it is important for the customer to understand that big deal, which is outside the usual economic activity, will not lead the contractor to bankruptcy and disruption of the state contract. To put it simply, budget organization confirmation is needed that the participant can fulfill an expensive contract.

Approval is also required for contracts entered into within the framework of business activities adopted by the charter. As a rule, it contains a limit on the amount. Maximum amount such an operation is not limited by law, but the owner must have an understanding of its limit.

The supplier provides a decision on the approval of transactions on electronic platforms as part of the main package of documents at the stage of registration and obtaining the status of an accredited company. To check whether the document meets the requirements, a sample decision on approval under 44-FZ will help. At the end of the article you will find some examples for various organizations.

How to write an approval

The founder has the right to establish a different procedure for the coordination and approval of major transactions in relation to his subordinate institutions. Below is an algorithm that applies to a budgetary institution subordinate to the Judicial Department under the RF Armed Forces.

The decision to approve a major transaction is made only by a special commission. To consider the issue of approval, the institution must send an application drawn up in a certain form (the form is approved by the representative of the founder).

The application must contain the following mandatory details:

1. Subject, purpose, type, as well as the amount (all positions are required).
2. The expected date of the conclusion of one or more related transactions.
3. The term for the fulfillment of the terms of a contract or several contracts by the parties.
4. Sources of funding, as well as associated costs for its implementation.
5. Security, if there is such a condition in the contract.
6. The list of property objects that will be transferred as collateral. The book value of such property at the reporting date is indicated.
7. The order in which the counterparty or counterparties for related agreements and contracts will be selected. For example, a direct contract or competitive procedures.
8. The name and registration data of the prospective counterparty, which must be indicated in the application based on the data on the conducted market monitoring.
9. Other terms of the contract, if any.
10. The total volume of accounts payable and receivable as of the date of the application, including taxes, contributions, fees and other payments to the budget system.
11. The book value of the assets of a budgetary institution as of the last reporting date.

The prepared application must be signed by the head of the budgetary institution, as well as the chief accountant or another person who is entrusted with these powers. The finished document is sealed with the official seal of the organization.

Along with the application, the institution must provide accompanying documents. These include:

• feasibility study;
• draft agreement on the implementation of a major transaction;
• motivated justification of the counterparty selected on the basis of the market analysis;
• report on the assessment of the market value of the property (not older than 3 months from the date of approval of the report).

The commission considers the received package of documents within 30 days. Please note that commission representatives have the right to request additional documentation and justification to confirm the circumstances and conditions.

The decision of the special commission may be not only the approval or refusal of a major transaction, but also other options. For example, an indication of a change in the essential terms of the contract, and so on.

After 10 days from the date of execution of the contract, the institution must report to the founder in the prescribed form.

For conducting a major transaction in violation of the procedure approved by the founder in relation to their subordinate institutions, the head of the institution shall be liable. In addition, such a transaction may be invalidated.

For example, if the budgetary organization "Museum" concludes an agreement for the supply of equipment for 10 million rubles, and the book value of the museum's assets is 20 million rubles, then the founder has the right to invalidate the agreement.

Please note that the institution has the right to independently declare the transaction invalid in such a situation. However, according to the norms of the current legislation, the parties to an invalid transaction are obliged to return or reimburse all assets, money and property transferred during the performance of the terms of the contract.

How to check a document received from a supplier

Most often, state employees and state organizations organize purchases, and do not participate in them. Therefore, it is useful to know how to check the decision to approve a major transaction.

Checking the criteria

For companies, joint stock or with limited liability, the criteria for the execution of documents for the approval of the terms of the contract were determined. If there is only one participant in the constituent documents of the company, then a sample decision of the sole participant on the approval of a major transaction is drawn up with his signature. If there are more than two founders in the company, then the issue is resolved at extraordinary meeting, at the end of which a protocol is drawn up. Download a sample protocol for approving a major transaction of LLC 2 founders at the end of the article.

At the legislative level, these documents are regulated by Federal Laws:

1. For limited liability companies the federal law dated 08.02.1998 No. 14-FZ (Federal Law "On LLC"), it contains information about which body of the company is authorized to make such an opinion.
2. For joint-stock companies the Federal Law "On joint-stock companies» dated December 31, 2005 No. 208.

We turn Special attention, that in accordance with the Federal Law "On LLC", if in a company the sole participant acts as an executive body, it is not necessary for him to make a decision on the approval of a major transaction of the sole founder. At the same time, during accreditation, he must provide information mail or the conclusion that, under the law, the contract is not significant to him.

Checking form and content

Article 181.2 of the Civil Code discloses the requirements for the content of such documents. Sample decision on approval or on the conclusion of a major transaction in accordance with paragraph 4 of part 5 of Art. 66 of Federal Law No. 44-FZ or, in other words, the decision to approve or conclude transactions based on the results of electronic auctions on behalf of a procurement participant - a legal entity, indicating information on the maximum amount of one such transaction, is not legally approved. You should check that it contains.

(see text in previous edition)

1. A major transaction is a transaction (several interconnected transactions) that goes beyond the normal business activities and at the same time:

Associated with the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property (including a loan, credit, pledge, surety, acquisition of such a number of shares (other valuable papers convertible into shares) public society as a result of which the company is obliged to send a mandatory offer in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies"), the price or book value of which is 25 or more percent of the book value of the company's assets determined according to its accounting (financial) statements as of the last reporting date;

providing for the obligation of the company to transfer property for temporary possession and (or) use or to grant to a third party the right to use the result of intellectual activity or means of individualization under a license, if their book value is 25 or more percent of the book value of the company's assets, determined according to its accounting (financial) ) reporting as of the last reporting date.

2. In the event of alienation or the possibility of alienation of property, the highest of the two values ​​is compared with the book value of the company's assets - the book value of such property and the price of its alienation. In case of acquisition of property, the purchase price of such property is compared with the book value of the company's assets.

If the company's property is transferred for temporary possession and (or) use, the book value of the property transferred for temporary possession or use is compared with the book value of the company's assets.

In the event of a transaction or several interconnected transactions by the company to acquire shares (other issuable securities convertible into shares) of a public company, which will entail the obligation of the company to acquire shares (other issuable securities convertible into shares) in accordance with Chapter XI. 1 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies", the book value of the company's assets is compared with the price of all shares that can be acquired by the company in such transactions, in accordance with Chapter XI.1 of the Federal Law of December 26, 1995 of the year N 208-FZ "On joint-stock companies".

3. Making a decision on consent to a major transaction is the competence general meeting members of the society.

In the event of the formation of a board of directors in a company ( supervisory board) the company's decision-making on consent to major transactions related to the acquisition, alienation or the possibility of alienation by the company directly or indirectly of property, the value of which is from 25 to 50 percent of the value of the company's property, may be attributed by the charter of the company to the competence of the board of directors (supervisory board) society.

In the decision on consent to the conclusion of a major transaction, the person (persons) who is a party to it, the beneficiary, the price, the subject of the transaction and its other essential conditions or the procedure for determining them must be indicated.

The decision on consent to the conclusion of a major transaction may not indicate the party to the transaction and the beneficiary if the transaction is concluded at an auction, as well as in other cases, if the party to the transaction and the beneficiary cannot be determined by the time the consent to the conclusion of such a transaction is received.

The decision on consent to the transaction or on the subsequent approval of the transaction may also contain an indication of:

on the minimum and maximum parameters of the terms of the transaction (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 their determination;

to agree to a number of similar transactions;

on alternative options for the terms of the transaction requiring consent to its completion;

to consent to the transaction, subject to the completion of several transactions at the same time.

The decision on consent to the conclusion or on the subsequent approval of a major transaction may indicate the period during which such a decision is valid. If such a period is not indicated in the decision, the consent shall be considered valid for one year from the date of its adoption, except for cases when a different period follows from the nature and conditions of the transaction to which the consent was given, or the circumstances in which the consent was given.

A major transaction may be concluded under the suspensive condition of obtaining proper consent to its conclusion in the manner established by this Federal Law.

4. A major transaction made in violation of the procedure for obtaining consent to its conclusion may be declared invalid in accordance with Article 173.1 of the Civil Code Russian Federation at the suit of the company, a member of the board of directors (supervisory board) of the company or its participants (participant) holding at least one percent of the total number of votes of the company's participants.

The limitation period for a claim to declare a major transaction invalid if it is missed is not subject to restoration.

5. The court refuses to satisfy the requirements for declaring a major transaction, made in violation of the procedure for obtaining consent to its conclusion, invalid in the presence of at least one of the following circumstances:

by the time the case is considered in court, evidence of the subsequent approval of such a transaction has been presented;

When considering the case in court, it has not been proved that the other party to such a transaction knew or obviously should have known that the transaction was a major transaction for the company, and (or) that there was no proper consent to conclude it.

6. If a major transaction is at the same time a transaction in which there is an interest, and in accordance with this Federal Law, the issue of consent to the conclusion of such a transaction is submitted for consideration by the general meeting of participants, the decision on consent to the conclusion of such a transaction is considered adopted if it received the number of votes required in accordance with the requirements of this article, and the majority of votes of all participants not interested in the transaction.

transactions, the completion of which is mandatory for the company in accordance with federal laws and (or) other legal acts of the Russian Federation and settlements for which are made at prices determined in the manner established by the Government of the Russian Federation, or at prices and tariffs established by the federal executive body authorized by the Government of the Russian Federation, as well as to public agreements concluded by the company on terms that do not differ from the terms other public contracts concluded by the company;

to transactions for the acquisition of shares (other equity securities convertible into shares) of a public company, concluded on the terms provided for by the mandatory offer to acquire shares (other equity securities convertible into shares) of a public company;

to transactions concluded on the same terms as the preliminary agreement, if such an agreement contains all the information provided for in paragraph 3 of this article, and consent was obtained to conclude it in the manner prescribed by this article.

8. For the purposes of this Federal Law, transactions that do not go beyond the normal business activities are understood to mean any transactions that are accepted in the activities of the relevant company or other economic entities engaged in similar types of activities, regardless of whether such transactions have been made by such a company before, if such transactions do not lead to the termination of the company's activities or a change in its type or a significant change in its scope.

Let us consider whether the tender commission under 44-FZ has the right to reject the supplier's tender bid if it finds that a decision on the approval of a major transaction is not attached to it.

Algorithm of actions for consideration of the application

When the commission actually revealed the absence of a decision in the application for a competition under 44-FZ, it needs to check.

It is necessary to identify, firstly, whether the laws of the Russian Federation and the constituent documents of a legal entity themselves necessarily require a decision on the possibility of making a major transaction.

Secondly, it should be clarified whether it is valid for the participant in the competition under 44-FZ to perform work under the contract, or financial security his application (or contract with the customer) will be a big deal.

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44-FZ on a major transaction

If we turn to Law No. 44-FZ for advice, we will see in subparagraph "e" of paragraph 1 of part 2 of Article 51 an indication that when the competition for contract system a potential supplier submits an application, it should already contain all the information, without exception, that the customer requires in the documents accompanying the purchase. Such information includes, among other things, the decision to approve a major transaction from the board of directors.

Further, according to paragraph 4 of part 1 of Art. 50 of the same law, the documentation compiled by the customer for the tender, as well as the notice published in the EIS that he is holding an open tender under 44-FZ, must necessarily include the requirements for what is contained in the participant's application (these requirements are described in 51 article of the same Federal Law). In particular, in the notice, as well as in the procurement documentation, it should be described in detail how to write a description of the participant's proposal, what is the required form and composition of the application for a potential supplier, and how to fill it out correctly.

This paragraph also notes the inadmissibility of establishing by the customer any additional requirements, from which, as consequences, there would be a restriction either on the number of participants, or their access to taking part in the tender under 44-FZ.

The big deal is...

Let's look at what a big deal is, and how to understand whether the execution of a contract, or the provision of this contract, or an application for participation, is a big deal for a particular participant who submitted an application. The decision to approve it can only be made by the general meeting of participants in the LLC, which is regulated by Part 3 of Art. 46 of Law No. 44-FZ.

To determine the supplier, contractor or contractor, it is first necessary to plan electronic procedures. Receive electronic signature. Choose the site that best suits your organization and register. Next, create documentation and a notice, carry out procedures and determine the supplier and conclude a contract, taking into account the characteristics of each of the procurement methods.
See solutions for each electronic way: auction, competition, request for quotations, request for proposals.

According to paragraph 8 of part 2 of Art. 61 of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), in order to obtain accreditation, the participant of the electronic auction provides the operator of the electronic platform, among other things, a decision to approve or conclude transactions based on the results of such auctions on behalf of this procurement participant - a legal entity, indicating information on the maximum amount of one transaction. If the requirement for the need for this decision to complete a major transaction is established by the legislation of the Russian Federation and (or) the constituent documents of a legal entity, this decision is taken in the manner established for making a decision on approval or on a major transaction. In other cases, this decision is made by a person authorized to obtain accreditation on behalf of this procurement participant - a legal entity.
In turn, according to paragraph 13 of Art. 9.2 of the Federal Law of 12.01.1996 N 7-FZ "On non-profit organizations» a major transaction can be made by a budgetary institution only with the prior consent of the relevant body exercising the functions and powers of the founder of a budgetary institution. At the level of constituent entities of the Russian Federation, the procedure for preliminary approval of large transactions made by a state budgetary institution is approved by the relevant departments * (1).
Special requirements for the execution of a decision on the preliminary approval of the commission government agency major transactions are not provided for by law. Such a decision may be formalized in a letter, order, protocol, order, etc. *(2) 61, paragraph 2, part 23 of Art. 68 of Law N 44-FZ, the decision on the approval of the transaction provided during accreditation must indicate the maximum amount of one transaction * (3).

We also recommend that you familiarize yourself with the materials:
— Encyclopedia of solutions. Approval of transactions made by state institutions;
— Encyclopedia of solutions. Major transactions of state institutions;
— Encyclopedia of solutions. The procedure for preliminary coordination (approval) of major transactions of budgetary and autonomous institutions.

Prepared answer:
Legal Consulting Service Expert GARANT
Verkhova Nadezhda

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Aleksandrov Alexey

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

————————————————————————-
*(1) See, for example, Decree of the Ministry of Culture of the Moscow Region dated May 17, 2011 N 123-r “On Approval of the Procedure for Preliminary Approval of Major Transactions by State Budgetary Cultural Institutions of the Moscow Region”.
*(2) See, for example, Sample form the consent of the founder of a budgetary institution to make a major transaction (prepared by the experts of the Garant company).
*(3) See, for example, the Sample Form of the Decision of the Owner of the Property of a Unitary Enterprise on the Approval of Transactions Based on the Results of Electronic Auctions (prepared by the experts of the Garant company).

Decision on approval of a major transaction under 44-FZ + sample 2018

According to the norms of the current Law on the contract system No. 44-FZ, it is assumed that the participants in the procurement procedures have a decision to approve a major transaction. This document will be needed not only when concluding contracts, but also for accreditation on electronic trading platforms. Therefore, all potential suppliers need to remember the specifics of making such a decision.

What is considered a major deal?

The concept of a major transaction is regulated by 208-FZ "On Joint-Stock Companies", as well as 14-FZ "On Limited Liability Companies". These include contracts that go beyond the usual business activities of the enterprise.

A major transaction is one that involves the acquisition or disposal of material assets in the amount of more than 25% of the value of all assets of the company. The assessment is carried out on the basis of information from the financial statements. The calculation is carried out for the entire period that precedes the date of conclusion of the contract. The charter of the company may also determine a higher percentage of the value to recognize the transaction as a major one.

The category of large transactions includes contracts for the sale of real estate, credit obligations, barter, guarantees, leases, granting the right to use objects of intellectual activity.

For individual entrepreneurs, as well as individuals, which may also act as suppliers for government orders, the concept of a major transaction does not apply. Therefore, for such persons there is no need to draw up a decision.

Since the beginning of 2017, amendments have been made to the legislation, according to which LLC with sole founder is not required to provide a major transaction approvalb decision. This is due to the fact that within a company with a single participant cannot arise controversial situations regarding the conclusion of the contract.

Who makes the decision to approve a major deal

In limited liability companies, the decision to approve the conclusion of a major transaction is made at a meeting of all directors. The competence of such a council in this matter should be enshrined in the Articles of Association of the company. Otherwise, the decision can be made only by the meeting of the company's participants.

In joint-stock companies, the decision is made at the general meeting of all shareholders. If the full block of shares belongs to one person, then confirmation of consent to conclude a transaction is not required.

The decision to approve a major transaction will not be needed if the contractual relationship arises during the reorganization of the company. The same applies to contracts for the acquisition of shares and securities.

Features of major transactions concluded by unitary enterprises

The activities of unitary enterprises (SUEs) are regulated by 161-FZ. Part 1 of Article 23 of the said law stipulates that for such organizations a major transaction is recognized, the amount of which exceeds 5 million rubles. According to part 3 of the same article, the decision to conclude major transactions is made solely with the consent of the owner of the company's property.

Thus, if a unitary enterprise plans to participate in public procurement and conclude a contract worth more than 5 million rubles, then the application must be accompanied by approval of the transaction. In the absence of such a document, the application will be rejected and such an action of the customer will be recognized by the regulatory authorities as lawful.

How is the amount of a large transaction calculated?

In the decision to approve a major transaction, it is necessary to prescribe a specific amount, which is recognized as the maximum possible for a given company. The price is determined from the following criteria:

1. Data from accounting report, which relate to the total value of all assets of the company.
2. If a specific figure cannot be calculated, the maximum value that the company can offer is indicated.
3. When the contract concerns a loan, the full amount of the debt is taken into account, as well as interest on the use of borrowed funds.

If the organization plans to conclude several transactions at once, then it is acceptable to draw up decisions within the framework of one document. Civil Code provides for notarial certification of such a decision. To avoid this procedure, the company is recommended to submit the relevant issue for discussion by the council of participants. In case of mutual agreement, the need for notarization is eliminated.

Basic rules for making a decision

The decision to approve a major transaction is drawn up in an arbitrary form. It must contain the following mandatory information:

1. The subject of the transaction.
2. The list of counterparties that act as parties to the contract.
3. The person who becomes the beneficiary of the contract.
4. Transaction amount.
5. Place and date of the relevant decision.
6. Full name, passport details and TIN of the founders of the company.
7. Details of the document about state registration firms.
8. Other important terms.

The decision must be made in writing. If it is signed by all members of the company, it is not necessary to draw it up on the official letterhead of the organization; it is also not necessary to seal such a document with a seal.

The decision to approve a major transaction is binding document included in the application for participation in public procurement. If the transaction is not recognized as a major one, then the offer includes a document confirming that the contract is not major for the participant.

A sample (example) of filling out the document can be downloaded here.

Sample decision to approve a major transaction

What is a Major Deal Approval Decision?

The transaction will be considered a major one if it goes beyond the boundaries of ordinary economic activity and at the same time is associated with the purchase or sale of property of a 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 transactions 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 this document, he revealed the main disputes regarding the approval of major transactions and agreements in which there is an interest.

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

When is such approval required in the contract system?

To participate in an electronic auction, all those who wish to first pass accreditation at the ETP. To do this, they provide a common package of documents, which includes consent to the transaction. Moreover, this is always required, including when the purchase does not belong to the category of large ones. You can find a sample decision on a major transaction 44-FZ at the end of the article.

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 apply to legal entities. Therefore, they are exempted from the obligation to submit such a document for accreditation at the ETP.

Approval of a major transaction with a single founder

LLCs, in which there is only one founder, who acts as the sole executive body, are not required to draw up such a document (clause 7 of article 46 No. 14-FZ).

At the same time, in paragraph 8 of Part 2 of Art. 61 No. 44-FZ states that in order to be accredited on the ETP, participants in an electronic auction must submit such information, regardless of their form of ownership. Otherwise, it will be impossible to bid.

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 sample decision to make a major transaction. But paragraph 3 of Art. 46 No. 14 FZ explains that such a document should indicate:

1. A person who is a party to an agreement and a beneficiary.
2. Price.
3. Subject of the agreement.
4. 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.

In 2018, 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.”

Thus, in order to be accredited and participate in the auction, we recommend using the sample decision on a major transaction 44-FZ both for a company that consists of one founder and for a meeting of participants that reflect all the requirements of the law.

Checking the decision to approve a major deal

Why and when needed

It is important for a budgetary organization that acts as a purchase orderer to know that the proposals received during the procedure are agreed with the executive bodies of the supplier (meeting of founders, board of directors, etc.). This requirement is due to the fact that it is important for the customer to understand that a major transaction that is outside the scope of normal business activities will not lead the contractor to bankruptcy and disruption of the state contract. In simple terms, the budget organization needs confirmation that the participant can fulfill the expensive contract.

Approval is also required for transactions made within the framework of business activities adopted by the charter. As a rule, it contains a limit on the amount. The maximum amount of such a transaction is not limited by law, but the owner must have an understanding of its limit.

The document confirming the readiness to take part in a significant purchase is provided by the supplier as part of the main package of documents at the stage of registration and obtaining the status of an accredited company on federal trading floors. To check whether the document meets the requirements, a sample decision on a major transaction 44-FZ will help. At the end of the article you will find some examples for various organizations.

Checking the criteria

For companies, joint-stock or with limited liability, the criteria for processing documents for approving the terms of the contract are determined. If there is only one participant in the constituent documents of the company, then the decision of the sole participant on the approval of a major transaction is drawn up with his signature. If the company has more than two founders, then the issue is resolved at an extraordinary meeting, at the end of which a protocol is drawn up. It must reflect the votes of all participants.

At the legislative level, these documents are regulated by Federal Laws:

1. For limited liability companies, Federal Law No. 14-FZ of February 8, 1998 (hereinafter referred to as the Federal Law “On LLC”) applies, it contains information on which body of the company is authorized to issue such an opinion.
2. For joint-stock companies, the Federal Law “On Joint-Stock Companies” No. 208 dated December 31, 2005 applies.

Checking form and content

Article 181.2 of the Civil Code discloses the requirements for the content of such documents. A sample decision on a major transaction is not legally approved. You should check that it contains:

• who is the party to the agreement and the beneficiary;
• maximum contract amount;
• the subject of the agreement;
• other significant terms of the contract.

New requirements for the decision to approve a major transaction due to changes in Federal Law 14

This is a new reason to reject the applications of those participants who did not follow the changes in the regulatory framework.

What changed?

From September 1, 2017, a new version of the 14-FZ is in force, which regulates the activities of the LLC. The old version does not specify how long the decision is valid, so the customer could not reject the application if the decision on a major transaction was made more than a year ago.

IN new edition clarifications were made: now the decision must indicate the period of its validity. Otherwise, such a decision by default will be valid for one year from the date of its adoption. The same conditions for JSCs appeared in the new edition of 208-FZ from July 30, 2017. When is an approval decision required?

• When registering on six state electronic platforms and on most commercial,
• In an open tender (paragraphs "e" part 2 of article 51 44-FZ),
• In a closed auction (clauses "d" part 2 of article 88 44-FZ),
• In an electronic auction (clause 4, part 5, article 66 44-FZ).

What to do?

1. If there are no deadlines in your decision, hold a meeting of owners and draw up a new protocol. If the owner of the organization is one, he alone makes a decision.
2. Send the new document to the ETP operators where you are accredited or registered.
3. Attach copies of the updated decision to applications.

Is it possible to participate in procurement without a decision?

Controversial issue:

Can the customer reject the application if it does not contain a decision to approve a major transaction, and the purchase is not major for the participant? There is no single position. Customers often reject such applications, but arbitration courts take the side of the supplier. We recommend applying the decision in any case in order to save time on proceedings.

Decision on approval of a major transaction 44-FZ: procedure and sample

Related Articles

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 dated November 14, 2002 “On State and Municipal unitary enterprises” states that a major transaction is a transaction that involves the acquisition or sale of property worth more than 10% statutory fund enterprise or for an amount 50,000 times the 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 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 No. 208-FZ of December 26, 1995 "On Joint-Stock Companies" gives the same definition of a CC as Law No. 14-FZ.

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 established in the law, the constituent documents of the participating organization, and when the price of the agreement / contract for LLC or JSC falls under the definition of the Constitutional Court;
• when accredited on an electronic platform.