When is it possible to legitimize a defect that fell on the tender bank guarantee?

In many tenders, the guarantee form is an integral part of the tender documents, and the requirement to attach a guarantee to the bid in the tender is usually an integral part of the threshold conditions. The implication of this is that almost any defect that has fallen on the guarantee will be considered an essential flaw that justifies the inadmissibility of the tender offer. There are very exceptional cases in which it is possible to deviate from this rule and in this article we will try to point out some of them.
The guarantee is intended to ensure, among other things, the economic strength of the bidder, to deter bidders from making fictitious bids, to ensure the bidder's seriousness regarding its participation in the tender, and to enable the tender's editor to get paid on the guarantee if the bidder breaches its bid. Therefore, the Courts determined that a deviation, even the smallest, from the provisions of the tender relating to the required guarantee, is liable to be considered a material defect that can invalidate the bid, even if the deviation was made in good faith, and even when the mistake was made by the bank issuing the guarantee. Thus, when a bidders encloses a guarantee in its bids which guarantee does not conform to the wording required in the tender or when there is an error in stating the validity or scope of the guarantee, the guarantee and the offer will be disqualified.
The reason for this strict approach is due to the preservation of equality between the bidders and the will not to provide an advantage to the bidder who deviated from the requirements of the tender regarding the guarantee over another bidder, considerations of efficiency and reinforcement of certainty. However, there are rare cases in which the Tenders Committee is entitled to accept a guarantee in which a technical defect has occurred, when repairing the defect does not prevent the purpose of the guarantee or does not contradict the principle of equality.
The Courts tend to interpret this exception minimally, and enable the "legalization"of "technical" defects that fall in a guarantee only when a number of cumulative conditions are met. The first condition is that the error is learned from the guarantee itself - for example, a prominent clerical mistake. Second, it is possible to understand the exact intention of the person who made the mistake using clear objective evidence, which is before the Tender Committee at the time of opening the tender box - for example, specifying the addition of "Ltd." to the bidder's name, when the bidder did not present itself as a company. Fourth, the mistake and its correction does not give the bidder an advantage over other proposers that violates the principle of equality and the other principles of tender law.
To the extent that there is an error in the wording of the guarantee, the Tenders Committee is required to exercise discretion, as opposed to automatic disqualification, and to clarify the source of the error and whether it is a material defect that justifies the rejection of the bid or the slightest defect that justifies deviating from the rule. However, this authority of the Tenders Committee does not exempt the bidder from its primary responsibility to a careful examination of the wording of the guarantee before it is submitted atthe tender.
It should be emphasized that ​​tender law is a complex area and the element of time may be material, as is the manner in which the bidder conducted before the Tender Committee, even at the stage of the clarifications process. Therefore, it is recommended to consult with a lawyer specializing in the field of tenders before submitting the tender proposal, and immediately upon receipt of notice of failure to win due to any defect. It is especially important to consult before returning the guarantee that was deposited by the bidder, even if the Tenders Committee demanded that it be returned to the bidder in order not to create an irreversible situation that would prevent an attack on the Tenders Committee's decision.