0
- On May 14, 2023, the tenders committee discussed the Petitioner's request to cancel its winning of the tender and rejected the application. The tenders committee clarified that to the extent that the Petitioner does not arrange the payment in accordance with the dates set in the tender, the Authority will consider this to be the Petitioner's retraction of its proposal, with all that is entailed.
On July 20, 2023, after the Petitioner did not meet its obligations by virtue of the tender, the Authority sent it a letter informing it of the cancellation of its winning of the tender. In the framework of this notice, the Authority noted that the Petitioner can submit its written arguments regarding the forfeiture of the bank guarantee (Appendix 21 to the Petition).
- On August 16, 2023, the Petitioner submitted a letter to the Authority in which she laid out her arguments against the forfeiture of the bank guarantee (Appendix 22 to the Petition). On March 20, 2024, the Tenders Committee's decision was made, which rejected the Petitioner's arguments and clarified that it was not obligated to specify the scope of the permitted construction. The Authority further added that in the tender brochure it is explicitly stated that it is the sole responsibility of the winner to check this figure. However, In view of the low scope of building rights on the land, the Authority decided to reduce the amount of the forfeiture and set it at 50% of the amount of the guarantee, which is NIS 844,000 (Appendix 26 to the petition). According to the ILA, this decision was inadvertently sent to the Petitioner shortly after its receipt, but only about a year after it was received, i.e., on March 24, 2025.
- In these circumstances, the Petitioner again approached the Tenders Committee on March 12, 2025 and April 1, 2025 with an additional request to cancel its winning of the tender and to return the bank guarantee (Appendix 27 to the Petition). On May 11, 2025, another decision was made by the tenders committee, which rejected the Petitioner's claims. However, since the Authority's decision of March 20, 2024 was sent to the Petitioner one year late, the Committee found in these exceptional circumstances to order an additional restitution of the guarantee amount and set the forfeiture amount at NIS 400,000.
- It is this decision that is the focus of the petition at hand. The dispute between the parties revolves around the question of whether the Authority breached the duty of disclosure regarding the building rights in the lot, and as a result, whether the tender documents fully and correctly reflected the state of affairs.
- It is a well-known rule that an administrative authority has a duty to act fairly, reasonably, equality, in good faith, and without arbitrariness and discrimination. The Court for Administrative Affairs will transfer the Authority's decision under its audit in the light of these rules (AAA 6466/19 Ministry of Defense v. Nursing Companies Association, paragraph 14 of the judgment of Judge (as he was then called) Y. Amit (Nevo, October 11, 2020)). However, the court will not replace the discretion of the tenders committee with its own discretion unless a material deviation from considerations of reasonableness, good faith and fairness in the fulfillment of the tender terms is proven (AAA 3190/02 Cal Building in a Tax Appeal v. Ramat Labanim Wastewater Treatment Company Ltd., IsrSC 58(1) 590, 598-597 (2003); AAA 6242/09 Hijazi Nursing Company in Tax Appeal v. National Insurance Institute (Nevo, November 10, 2009); AAA 5408/12 Barak 555 in a tax appeal v. Magalcom Communications Computers in a tax appeal (Nevo, February 14, 2013)).
- In order to critically examine the authority's decision, it is necessary to examine First and foremost, if it breached the duty of disclosure imposed on it in the tender process. In this context, I will note that The duty of disclosure that applies to an administrative authority is broader than that which applies to a private contractor in a contract. Thus, other municipal requests 2413/06 Caspi Rejwan Towers and Building in Tax Appeal v. Jerusalem Local Planning and Building Committee (Nevo 10.11.2009) Justice A. Rubinstein changed the following words:
"There can be no dispute that the Administration, as a tender arranger, has a duty to ensure that the tender documents, including the zoning plan that was attached to it as the binding bylaws, fully and accurately reflect the planning reality in the lots in question. The duty of disclosure imposed on an administrative body that conducts a tender is very broad, and is greater in scope than the duty of disclosure that began during negotiations between private parties to conclude a contract...