Any player in the field of tenders in Israel need recognize the unique regulatory field requiring the meticulousness following of certain play rules, as any deviation from which may cause the disqualification of a tender offer.
Tender Threshold Preconditions - meeting the tender threshold conditions is the "entry ticket" to participate in the tender. Failure to comply with such prerequisites will result in the tender offer being automatic disqualified. The tender commissioner a broad discretion when formulating the threshold preconditions such as the requirement of prior experience, seniority, required certificates etc. It is important before submitting an offer in a tender to check whether one can meet the requirements using the company's shareholders or by a second tender bidder or whether there are threshold which appear unreasonable in relation to the nature of the tender. Tender threshold preconditions must meet the fundamental tender law principles such as the equality between the various bidders, the existence of a fair competition among the participants and other requirements. Nevertheless, legal attack on such conditions unreasonableness must be made prior to submitting the bid because the participation in the tender is deemed agreement to such terms.
Tender Guarantee – It is common to require tender require bidders to deposit a bank guarantee as part of the tender bid. It is vital to pay special attention to the requirements of the tender guarantee, because any flaw in the guarantee may lead to disqualification of the bid. One need ensure that the guarantee is precisely identical to the required tender guarantee language and that all other bank guarantee tender requirements are met. For example, tender offers were in the past disqualified because the tender required a signature of the bank clerk near the bank stamp despite the fact that the bank internal procedures did not require this. The guarantee is returned to the bidders who did not win but if a bidder wishes to consider attacking the decision of the tender committee it is important to avoid accepting the bank guarantee as such acceptance may be interpreted as a waiver of the possibility of attacking the decision of the tender committee.
Submission of the Bid – One need ensure that the submitted bid is clear fully complies with the requirements of the tender. One need avoid, as much as possible, any stipulations or additions to the quotation that have not been specifically requested in the tender. One should ensure that all the costs involved in later complying with the contract that is part of the tender have been considered and that the bid meets all required components. Failure to comply with any of the required elements may be considered as a missing (and thus disqualified) offer. If there are any components that require stipulation and are already included in the pricing of another component, it is highly recommended to seek guidance using the clarification questions process, prior to submission of the bid. It is important to avoid any use of discretion or filing of an expanded bid, which can in some cases lead to disqualification of the bid even if it is beneficial to the tender publisher. We also note that shifting costs from one component to the other and providing an unreasonable discount on the component from which the costs were shifted may in some cases be considered a manipulative bid, which may also lead to disqualification of the bid. In some cases one may wish to attend the bids opening to ensure that the proceeding is duly conducted.
To lower costs and reducing the risk of disqualification of the bid it is important to utilize an attorney who expertize not only in tenders but also in contracts and in the areas in which the tender deals and have such attorney accompany the bidder commencing the stage of preparation of the bid and not only from the stage in which things have become complicated and Court proceedings are involved.