A supplier submitted a bid for a tender for the provision of services published by a government ministry, but was not selected as the winner. The supplier refused to accept the decision of the tenders committee, but until its claims are clarified in Court, the engagement with the winner will advance and its claims will become theoretical. Is it possible to freeze the engagement until the petition is decided?
In a petition to the Court, it is possible to move the Court for an order of stay of execution in order to maintain the existing situation until the petitioner's claims are clarified and by doing so to prevent irreparable damage. The considerations for granting a stay order vary according to the type of tender, the scope of the damage expected to each of the parties as a result of the decision, the public interest, the necessity of the engagement, etc. Thus, there is a difference between a tender for ‘construction work or a complex tender which implementation involves an engagement with subcontractors and preparation for the execution of physical work on site and a tender for the provision of 'services' in which it is possible to "hand over the baton" between the suppliers, if necessary, down the road and therefore the tendency will not be to suspend the execution of the tender with its winner. There is also a difference between irreparable damage and damage that can be ratified by monetary compensation and then the tendency will be not to suspend the engagement. These considerations fall under a category known as the 'balance of convenience' and is a decisive factor in such motions. The Court will also consider other issues, such as the chances of a petition to be accepted by the Court, and considerations of public interest. Thus, for example, in a case heard in July 2023, in the Jerusalem Court for Administrative Affairs, a motion for a stay order of a tender for operation of public transportation lines for a period of ten years was rejected. In that case, there was a significant public interest in executing the service as it is an essential service and such stay could cause damage to the public that exceeds the damage that may be caused to the petitioner if a stay is not granted.
Another consideration may be the timing of the motion (because a delay, even if the petitioner acted quickly but objectively there was a delay, will result in the rejection of the motion and perhaps even the petition in its entirety). Thus, in a case heard in August 2025, at the Jerusalem Court for Administrative Affairs, in which our firm represented ELI – the Association for the Protection of Children from Physical Violence, Sexual and Mental abuse, won a tender of the Israeli Ministry of Social Affairs. A bidder who did not win petitioned the Court and also sought to stay the engagement. The petitioner waited for the receipt of documents and tender materials from the tenders committee and even for a response to its request before filing the petition and therefore petitioned only after 40 days. Although there was a reason for the delay, objectively the period of time that elapsed until the filing of the petition actually led to a change in circumstances on the part of the winner of the tender, which was required to carry out multiple preparatory actions in a short timeframe, including entering into lease agreements for the tender period, which was 3 years, while providing guarantees for them, recruiting employees , equipment purchases and more. The Court accepted our firm's position and rejected the motion for temporary relief, after which the petition was also dismissed.
A stay in an engagement resulting from a tender is not a trivial matter, especially when it comes to a tender for the provision of services. Therefore, in order to avoid unnecessary and costly mistakes, it is recommended to strictly follow the provisions of the tender and to be accompanied by a lawyer who deals with the field of tenders already at the stage of submitting the bid in the tender, also in order to ensure the ability of the supplier to execute the tender if and when it wins the tender. In any case, upon receipt of a notice of non-winning, it is recommended to contact an attorney who specializes in the field of tenders who will examine the most appropriate courses of action in accordance with the circumstances, including the submission of a request for an injunction and a temporary injunction in appropriate cases without delay and as soon as possible.