In tenders law, the date of raising claims regarding the validity of the tender and the decisions of the tenders committee is of special importance, as failure to take legal action on time may, in certain circumstances, establish a procedural barrier of 'estoppel' and 'impediment' and cause the Court's non-intervention. So, what is the right time to attack tender proceedings, how should a bidder in a tender act when already in the early stages it has contentions about the proceeding?
Under Israeli law, an administrative petition must be filed as soon as possible and one should act without delay, under the circumstances of the case, and no later than forty-five days of the earlier of the date the decision was officially published, the date the petitioner received notice thereof, or the date the petitioner became aware of it. To examine whether the petition was filed without delay given 'the circumstances of the case', the Court will examine the entirety of the circumstances prior to approaching the Court.
First, the circumstances will be examined based on a 'subjective' examination. In this framework, the reasons that led to the delay in initiating the proceeding and the conduct of the party contending against the administrative proceeding will be examined. Thus, for example, the Court will examine the date on which the petitioner learned of the cause of action, why it moved the Court for relief with delay and whether its conduct may appear as it already waived its right. Second, the Court will examine whether the delay is also likely to harm an innocent third party from an 'objective' perspective if the petition is granted. In this framework, the Court will examine whether damages were or are likely to be caused to the opposing party, which would have been avoided had the proceeding been taken at the appropriate time and without delay. Objective delay is considered a central component of the basis of a delay contention, as it relates to the consequences caused by the subjective delay. The objective delay exists, when as a result of the time that passed until the petition was filed, the situation changed in such a way that the acceptance of the petition would cause damage to a third party, which would have been prevented if the petition had been filed on time. For example, the filing of a petition after the winner of the tender, who acted on the basis of his winning, purchased special equipment for the purpose of executing the tender. In addition to the considerations examined by the Court, there is also the consideration of respecting the rule of law. In this framework, the question of whether the cause of action for the petition is based on a serious violation of the rules will be examined. For example, the Court may grant relief even when there is a delay, for reasons of protecting the public interest, such as suspicion of serious acts of corruption, etc.
However, beyond the procedural limitations relating to the submission of petitions to the Court, there is also importance to the manner in which a bidder conduct itself already at the stages when the 'defect' is discovered. Thus, for example, refraining from taking a position in the early stages may prevent future claims against tender defects. On the basis of this principle, a bidder who refrains from raising contentions the tender wording will not be allowed to raise such contentions after it filed the bid and lost the tender, as its conduct may be considered as 'consent' to the rules of the game and the terms of the tender. Another case is when a bidder who lost requested to receive back its guarantee, which may be deemed as one who chose to 'exit the game' and waived participation in the tender. Therefore, as a rule, it is suggested to refrain from demanding back the guarantee, until the validity of the tender is examined.
These rules express both considerations of justice and considerations of efficiency, taking into account the costs involved in the tender proceedings and as a result of the damage that may be caused due to raising contentions late and the reliance of third parties, after the tender has already taken place. In light of the emphasis given by the Courts to tender participant swift conduct, it is recommended to be accompanied by a lawyer who specializes in such field already in the early stages of the tender and before submitting the bid.