In AP (Administrative-Jerusalem) 42572-04-12 AVC Systems in a Tax Appeal v. Minister of Communications (Nevo 5.9.2012) (hereinafter – the AVC case), it was held that when a winner of a tender does not meet the prerequisites for the creation of the engagement (in accordance with Regulation 16B(b)(4) of the Tenders Duty Regulations), the starting point of the tenders committee must be the forfeiture of the full amount of the guarantee. This rule is intended to create certainty, simplicity and deterrence in public tenders. Notwithstanding the aforesaid, the tenders committee is given broad discretion to deviate from the starting point and reduce the amount in exceptional circumstances. The main considerations for the reduction include the bidder's good faith, the efforts he invested in realizing the win, the absence of actual damage to the Authority, and the Authority's possible fault in designing the tender. These reasons are acceptable to me, and they are also true in our case.
- In principle, the decision as to the exercise of the forfeiture power by virtue of Regulation 16B(b)(4) The Tenders Duty Regulations are a relatively simple factual decision.
Prior to the decision, the tenders committee allowed the Petitioner to exhaust the right to plead in writing. Thus, on August 16, 2023, and on November 28, 2023, the Petitioner submitted "written arguments regarding a decision regarding the cancellation of a tender and the forfeiture of the deposit" (Appendices 23-24 to the Petition). Thus, the Authority fulfilled its duty to grant the Petitioner the right to plead before making the decision regarding the forfeiture of the bank guarantee (AAA 7201/11 Rahmani D.A. Earthworks in Tax Appeal v. Airports Authority, paragraph 49 (Nevo, January 7, 2014)).
Moreover, the tenders committee saw fit to explain its reasons in detail. A well-reasoned, detailed and exhaustive decision, as made by the tenders committee in this case, makes it easier for the court to examine its considerations.