The omission of a detail or a document in the submission of a bid for a tender may be considered a defect in the proposal. Does this constitute grounds for disqualification of a bid? Under which conditions may the bidder amend the mistake and complete the missing documents?
It is well known that the principle of equality between bidders is a superior principle of tenders law. Consequently, one may not favor a bidder over the other and unfair advantage for other offers may not be afforded.
The Courts held that granting a bidder the possibility of correcting a material defect in a bid constitutes a violation of the principle of equality. For example, compliance with the pre-conditions (conditions defined as such without which the proposal will not be examined at all) is a material issue, because all bidders must meet a common "starting point." Not including a document or omitting a detail to prove compliance of a pre-condition is a prima facia material defect which cannot be rectified.
The tender committee has the discretion to decide whether the classification of the defect should be a material defect requiring the disqualification of the proposal (for example: failure to attach a bank guarantee to the tender), or a technical defect that does not require the disqualification of a proposal. However, there is no doubt that allowing a bidder to complete missing details after the submission of the bid, in order to enable the bidder to show compliance with the pre-conditions, may in certain circumstances jeopardize the equality and the principle of certainty of the other bidders. It is important to emphasize that the Court does not see as proper when a bidder does not duly examine the bid before submitting it and view it as disrespect of the tender process and even negligence.
However, there are cases in which the Court allowed the bidder to complete documents needed for show of compliance with pre-condition conditions (e.g., documents showing prior experience, financial strength, etc.), provided that the document is a technical document that shows the fulfillment of the pre-condition conditions prior to the final submission date (Such as: diploma certification, prior experience, recommendations that were given, CPA's approval of accounting data, etc.), because show of such approval or document does not provide an unfair advantage over the other bidders. It should be emphasized, that a result such as disqualification of a proposal, will not always be for the benefit the public interest and therefore the Court will take it into account if a bidder can show that the omission was a random omission made in good faith. It should be noted that in tenders where an explicit provision allows the tenders committee to demand completion of details and documents that were omitted in good faith it would be difficult to argue in the name of the principle of equality, as this 'right' is given in an equal manner to all bidders.
In any case, it is strongly recommended not to take unnecessary risks and duly review the bid prior to its tender and with the assistance of a lawyer specializing in tenders, all to ensure that the bid includes all the necessary documents and data in accordance with the terms of the tender. The assistance of a lawyer specializing in the field may ensure in advance that the tender documents are submitted in accordance with the terms and prevent the distress caused by disqualification of the bid or legal disputes that could be prevented by advance preparation.