Whether to reject an application for participation in public procurement if the decision to approve a major transaction is overdue
The participant of the electronic auction submitted the minutes of the extraordinary meeting of participants on the approval of a major transaction as part of the second part of the application. The customer rejected the application due to the expiration of the decision to approve the transaction. In his opinion, the submission of the protocol meant that a decision was necessary to participate in the procurement.
The FAS of Russia recognized the participant's complaint as justified and found that the customer violated the provisions of Law No. 44-FZ. The supervisors noted that the customer did not prove the need for approval of the transaction by the general meeting of shareholders.
The court supported the conclusion of the FAS of Russia. The state contract was not a major transaction, as it did not go beyond the normal business activities of the participant. The requester should not have taken the approval decision into account when evaluating the second parts of the applications. The mere fact of submitting the minutes of the general meeting of shareholders has no legal significance.
The Supreme Court of the Russian Federation pointed out: participants send to the operator of the electronic platform a protocol on the approval of a major transaction when passing accreditation. This does not give grounds to consider a contract based on the results of any purchase for which applications will be submitted as a major transaction.
Document: Resolution of the Fifth AAC of 16.03.2021 in case N A59-2474/2020