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Information about the maximum transaction amount. Peculiarities of making a decision to approve a major transaction

The decision of the founders on approval big deal required to participate in electronic auction. In principle, all major transactions of the company require the preparation of such a paper. But when conducting electronic trading decision is requested separately and is prerequisite to complete it.

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Document Types

If the organization has a single founder, he is also the head, then it is required to draw up his own decision. The document will be called "Decision of the sole participant" and will not require a general meeting of the founders.

If there are several founders and all of them came to a single decision to make a major deal, then a special protocol of the founders' meeting is drawn up. It can be called the decision of the founders to approve a major deal.

In principle, the name does not play a special role here. The main thing is the content of the paper and compliance with the requirements for the formation of the document.

What is considered a major deal?

According to paragraph 3 of Article 46 federal law 14-FZ, the value of property with which a company can conduct transactions may be 25-50% of the book value. Such a transaction can be considered a major one and requires the convening of an extraordinary meeting of the founders. Naturally, if it does not belong to the usual economic activity organizations. The carrying amount is determined based on information from the last date of the financial statements.

A major transaction may be a lease, a loan. Not only the sale and purchase can be considered large transactions, but they are usually the most common.

Expanding the definition, we can say that it is possible to acquire and sell in a major transaction not only goods, but also intellectual property.

Members

Decision making in an organization can take place in several scenarios. Everything will depend on the wording in the founding documents. The most common situation is when a company has one founder and several participants, but there are other forms. Each of the participants in the general meeting of founders may have a different percentage of votes. Without a quorum of all founders, the minutes of the meeting will be invalid. The decision is made by majority vote. Not all founders may agree with a major transaction.

Components of the decision of the founders

The paper should have an introductory part in the form of a heading and a stating paragraph, as well as a description of the agenda, the decision taken and signatures. The header contains standard data about the name of the organization, its details, date and city of compilation. The document must have a number. Through it, the paper is then entered into the registration documents of the organization.

The ascertaining part is descriptive and consists of an indication:

Meeting places. Despite the fact that the city is already indicated, the territorial affiliation in this paragraph is specified by a specific address.
Dates.
Start and end times for registration of participants. This is a formal clause, but its presence indicates the conscientiousness of filling out the decision of the founders on the approval of a major transaction by the secretary.
List of meeting participants. It is obligatory to indicate whether there is a quorum or not. Without it, all other actions and signatures will be invalid.
Information about which of the participants has what percentage of votes. This data is taken from constituent documents.
Meeting opening and closing times.
Full name of the secretary who draws up the decision of the founders in the proper form.

agenda

The main part of the decision is a numbered agenda. Numbering is a prerequisite, even if there is only one item in the list. And in this case, it will be the item “On the approval of a major community transaction.” When describing a discussion, the document must indicate:

The subject of the transaction. It can be both tangible goods and intellectual property.
It is planned to buy, sell, rent or other type of action with a large-value commodity.
The exact price of the transaction.
What are the terms of the deal.
With whom it is planned to make a major transaction for the organization.

Each of the points in the text of the document should be discussed by the participants. At a minimum, there should be information about who made the proposal, its essence and arguments. If all the other founders agree, then a unanimous decision is made. If not, then each opinion of the meeting participant is recorded in the minutes. These are the mandatory rules for maintaining these documents.

After each of the points there should be the phrase "Decided" and the results of the vote on the issue raised. These results should be expressed as a percentage. At the end, you can make a note as to whether there were other questions during the meeting.

Term

In practice, there are situations when the transaction is delayed. In order not to drown in proceedings regarding the legitimacy of transactions, government bodies approved the time period during which the decision to complete a major transaction remains in force.

Automatically, the approval period for a specific transaction will be equal to one calendar year. Unless, of course, the approval period is not specified in advance in the organization's statutory documents or in the minutes of the founders' meeting. Then the decision on this issue has already been made.

Notarization

According to clause 3 67 become Civil Code a notary can certify the decision of the founders on the approval of a major transaction. The second option is approval through signing by all meeting participants. Naturally, the lion's share of organizations prefer the second scenario.

But in order for such a certificate to become possible, it must be specified in the decision of the founders as a separate paragraph. It will be legally more competent. Therefore, in addition to the first paragraph on the direct decision-making, the document may also contain the second: on the choice of a method for confirming the decision made. Each of the agenda items has a description in the attached sample of the decision of the founders on the approval of a major transaction.

Recently, new requirements for the execution of a decision or protocol on the approval of a major transaction have come into force. For LLC they are set new edition Law No. 14-FZ, and for JSC - a new version of the 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 indicated. 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. Unlike 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 at 6 electronic trading platforms (part 2 of article 61 of Law No. 44-FZ), as well as at 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 applying for participation in open competition(subparagraph “e”, part 2, article 51 of Law No. 44-FZ) or in a closed auction (subparagraph “e”, part 2, article 88 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 taken was valid, 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, from the date of the decision / protocol on a major transaction more than a year has passed.

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 adoption general meeting members of the company, the decision and the composition of the members of 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 ETP site 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). You must enter the correct operator name 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.

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 as part of 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. Thereafter this information 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 UIS nor the operator of the electronic site checks 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. Sample this document you can see 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 the unified information system, preparing and attaching the necessary correctly completed documents, and helping the participant to get into the ERUZ as soon as possible.

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

Ltd IWC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with article 1259 of the Civil Code of the Russian Federation

Major transactions include transactions whose value exceeds 25% of the value of all company assets. The Articles of Association allow setting a different price threshold, changing or supplementing the list of possible agreements.

The current legislation of the Russian Federation requires a formal decision to approve a major transaction by an LLC. The procedure, as a rule, is carried out by the general meeting of all participants. If a supervisory board is organized, then such a function can be assigned to it by the charter (but only if the subject of the agreement costs no more than half of the available assets).

If the LLC was established by one person, then all the functions that fall within the competence of the general meeting are assigned to it - in this situation, a sample decision of the sole founder on a major transaction is required. However, the sole participant can independently resolve such issues only when he is not the CEO.

Sample decision on a major transaction

The law does not establish exact requirements for the form in which the sole founder must issue consent to conclude expensive agreements. The decision to approve an interested-party transaction and any major transaction is made in writing.

As a sample for filling, you can use the template provided in the FreshDoc service, it includes the following information:

date and place of drawing up the document;
full information about the founder;
the name and details of the parties whose agreements are subject to approval, their statuses, basic conditions;
confirmation of the authority of the person acting as the sole executive body to perform all actions to implement the approved decision.

A sample decision on a major transaction is signed by the sole founder, and there is no need to put a seal.

Validity of the decision to approve a major related party transaction

Neither the Civil Code of the Russian Federation, nor the Federal Law "On LLC" contains indications of how long the decision made by the founder is really. The opinion of the Plenum of the Supreme Arbitration Court is as follows: the document confirming the approval can include a condition on the period of its validity - in this case, only a transaction concluded within the specified period will be considered appropriately authorized. If there is no time frame, then the decision will be considered valid for one year from the date of its adoption.

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 ( Single register 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”.

But 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

Major deal approval joint-stock company in accordance with Article 79 of Law No. 208-FZ, is adopted board of directors (supervisory board) or general meeting of 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. Referring the transaction to the category of large, unitary and budget organizations should be guided by its size, and commercial - to take into account also the fact whether the operation is normal for their business activities or not.