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. Following the article published in our publication number 179 we will try below to clarify some additional substantial issues.
Formalities - The "technical" instructions of as to the manner in which a bid is to be filed are a substantial part of the tender. One need, for example, pay special notice to the deadlines, number of copies required, signatures required (in many tenders each page of the bid must be signed), who is required to sign the bid and the like. "Technical" defect in the bid may be deemed material in certain circumstances and disqualify the bid. Moreover, the manner in which a bid is filed is a type of "business card" of the bidder and is an indicative of the seriousness to carrying out the proposed project. In many tenders personal impression is one of the criteria in choosing the winning bid.
Examining the terms of the contract - Once the ability to participate is reviewed a bidder should thoroughly review the contract and professional terms of engagement attached to the tender. Once the winner is declared such winner will be required to execute the agreement attached to the tender documents and the professional terms of engagements will be binding on it. Therefore, it is vital to trace all the "landmines" in the terms of engagements that may later on turn the engagement less attractive. E.g. events of default, ability to forfeiture of the performance guarantee, unreasonable professional requirements or such that may influence the pricing of the bid, and others. Thus, it is vital that an attorney specializing in the contractual field of the specific tender will thoroughly review the contract and comment thereupon.
Bidders Meeting and Inquiries - Many tenders allow bidders to officially raise issues of non-reasonableness of terms or inconsistencies within the tender. Often a meeting is held with all bidders in order to provide clarifications as to the tender and its nature and even a tour of the pertinent project site. In many cases participation in the bidders meeting is obligatory and one cannot submit a bid without participating therein. If an unreasonable provision exists in the tender it is vital to raise such issue before submitting the bid and demand its replacement. Refraining from timely raising a claim may be deemed consent to the terms of the tender and the bidder would most likely not be allowed to raise any such claims after submission of the bid.
Tender Procedures – The tenders committee procedures are subject, as any administrative body, to judicial review. The tenders committee has administrative duties such as exercise its judgment appropriately, reasonable decision-making and more. These obligations exist as of the early stage of drafting of the tender documents and through the process of selection of the winner. Therefore, it is important to be perceptive of the procedure not only upon learning of the results of the tender but as of the early stage of publication of the tender. Here too time is of the essence and late raising of claims may be deemed a waiver and it is important to be escorted by an attorney who specializes in the field in order to be able to review the due proceedings as of the early stages of the tender.