12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)
This is an unreasonable and disproportionate decision; The decision creates discrimination between the Petitioner and the winners of the first tender, which was canceled by the ILA under identical circumstances; The decision was made with incomplete and laconic reasoning, with a severe conflict of interest and without the Petitioner being duly heard; The total forfeiture was determined arbitrarily and unfounded. In addition, the ILA's insistence on forfeiture of part of the guarantee, even though it was not damaged, constitutes enrichment and not in law.
The Respondents' Main Arguments
- The tender was published in a transparent and proper manner. All the relevant data, including the description of the lot, the plans that apply to it and the plan regulations were published in full in the tender brochure. There were no material defects in the tender documents and there was no deception or concealment of information on the part of the Authority. The Authority even published a clarification notice that included an up-to-date sketch and resolved any ambiguity regarding the identity of the lot.
- The sole responsibility for clarifying all details, including planning data and economic aspects, rests with the bidder. The Petitioner, as a commercial company accompanied by professional and legal advice, was obligated to carry out thorough and comprehensive examinations before submitting its proposal. The pitch was shown in "AS IS" and the Petitioner accepted these conditions when it submitted the tender.
- If the Petitioner believed that the minimum price was too high or that the transaction was not economically viable, it should have refrained from submitting a bid. A mistake in the profitability of the transaction is not a reason for restoring the guarantee. The Petitioner did not take advantage of the opportunity to ask clarification questions before submitting her proposal.
- At the end of the day, the tenders committee saw fit to return to the Petitioner a significant part of the amount of the guarantee that was forfeited. The Authority did so in full good faith, taking into account the Petitioner's arguments and the delay in providing the response. However, there is no justification for the full refund of the amount of the guarantee that was forfeited in the circumstances of a mistake in the feasibility of the transaction on the part of the Petitioner.
- As part of the preliminary hearing of the petition, the parties exhausted their right to plead orally. The ILA announced that it was not interested in submitting a reply, and that it was possible to issue a judgment on the basis of the pleadings and the preliminary hearing. However, Coming-The Petitioner's counsel requested to complete a written argument and his request was granted. Thus, After the preliminary hearing, the parties submitted a supplementary written argument. With the completion of the arguments, the time has come to rule on the petition.
Discussion and Decision