Administrative Petition (Center) 70259-02-25 A.G. Octopus Cleaning Works Ltd. v. Tira Municipality

Judgment

1. Before a petition regarding tender 23/2024 published by Respondent 1, the Tira Municipality, for the provision of cleaning services for it. After Respondent 2 won the tender according to the recommendation of the Tenders Committee, the Petitioner petitioned for remedies to cancel the winning, a finding that Respondent 2 did not meet the threshold conditions and as a result the declaration of Respondent 1 as the winner thereof.

The engagement period was set at 24 months with an option for an additional 36 months.

2. 4 bidders submitted their proposals. According to the opinion of the tender consultant, Mr. Mohammad Sarsour, the four bidders met the threshold conditions and when weighing the price and quality aspects, they were scored as follows (in descending order): Galil and Placement Group (Respondent 2) - 99.55; G.  The octopus (the Petitioner) - 97.17; Klein Moore Group - 96.67; R.K.L.  Holdings - 96.
3. On December 24, 2024, the tenders committee recommended Respondent 2, and on December 29, 2024, a notice was sent to the Petitioner, stating that it did not win the tender.
4. The Petitioner raises two main arguments. The first is regarding the prerequisites and the second is regarding the scoring according to the criteria, and both are related to respondent No.  2's prior experience in providing cleaning services.

Clause 2.3 of the tender booklet establishes professional prerequisites, and in clause 2.3.2 the condition is set as follows: "The bidder has at least 3 years of experience in providing cleaning services to private or public customers in the scope of 10,000 hours per year, between the years 2022-2024".

Section 3 deals with the evaluation of proposals, and Section 3.2(1) establishes criteria regarding the bidder's experience as follows:

• A bidder with at least 3 years of experience in providing cleaning services to a municipality or council in a scope of at least 3,000 hours per year, between the years 2020-2024, will receive 20 points.
• A bidder with at least 3 years of experience in providing cleaning services to educational institutions in the scope of at least 3,000 hours per year, between the years 2020-2024, will receive 20 points.

5. According to the Petitioner, according to the details in Respondent No. 2's proposal (Appendix 9 to the Petition), its declared attempt began in March 2022 and ended in November 2024, i.e., lasted a maximum of two years and nine months as of the date of the tender, and therefore does not meet the requirement of "at least 3 years" set forth in the threshold conditions and criteria, and therefore the Respondent should have disqualified the proposal, and at least refrain from awarding the full score (40 points) for professional experience.
6. In contrast, the municipality argued that a three-year experience is examined "without reference to a year as a calendar year (12 months)", i.e., even a part of a year that meets the scope of work hours (10,000 hours) meets the threshold conditions of "one year", and thus for the years 2022, 2023, and 2024 (even if not in full) the condition of "at least 3 years" is met. She added that "the quota of cleaning hours provided by the bidder is the important and examined measure", and in this context she referred to an answer to the question of clarification, according to which in the context of the criteria, a company that has cleaned only one school or municipal site in the required number of hours (3,000 per year) meets the criteria, since "the determination of the threshold conditions and quality indices is derived from the estimated number of hours, the purpose of this section is to examine the bidder's experience with the town and educational institutions in accordance with the scope of hours required in the tender."
7. Respondent No. 2 raised a claim of delay at the outset.  Notice of the results of the tender was given to the parties on December 29, 2024 at the latest, the Petitioner had all the tender materials already in the hands of the Petitioner on January 6, 2025, but the petition was submitted only on February 27, 2025, i.e., 58 days after the notice and 52 days from the receipt of the material requested by it.  According to her, on February 1, 2025, it began providing cleaning services by virtue of the tender, and at the time of filing the petition, the municipality had already been operating for about a month, and therefore this is a material delay.
8. As to the prerequisites, respondent No. 2 claimed that in relation to the customers mentioned in its proposal, in 2022 it provided cleaning services in a scope of 22,127 hours, in 2023 in a scope of 140,900 hours, and in 2024 in a scope of 172,865  That is, far beyond the 10,000 annual hours specified in the threshold conditions and the 3,000 annual hours stated in the criteria.  Therefore, she argued that in doing so she met the threshold conditions of "at least 3 years of experience" in the said years and to the required extent, and there was no defect in the fact that she received the maximum score for her experience.
9. In response to the claim of delay, the Petitioner claimed that it "acted vigorously and without delay to receive the tender documents and to raise its arguments and objections before Respondent No. 1 as part of the obligation to exhaust the proceedings", and that the Municipality's response was received only on January 26, 2025.  Moreover, from January 14, 2025 to February 4, 2025, the Petitioner was "immersed in a hearing process with the Kiryat Shmona Municipality." According to its approach, even if it is found that it has been delayed, the petition should not be dismissed, because the material defect in the failure to meet the threshold conditions is a material defect that harms equality and the rule of law.
10. Two hearings were held in the petition. At the end of the preliminary hearing, the court proposed a compromise that was brought in the minutes.  In the second hearing, in which the parties heard at length, and at the end of it, the court proposed an amended proposal, but the parties did not reach an agreement, and a decision is required.
11. After reviewing the written and oral arguments of the parties, I found that due to the delay in filing the petition, it should be dismissed.

Failure to Attach Answers

12. Four bidders participated in the petition. All four of them have passed the threshold conditions, and the difference in points between them is quite small.  In these circumstances, the Petitioner should have joined all the Respondents, in order to enable them to take a position (Regulation 6(a) of the Courts for Administrative Matters (Procedures) Regulations, 5761-2000; Application for Administrative Leave to Appeal 5919/22 Association of Cities for the Environment Ashkelon District v.  Euro-Asia Pipeline in Tax Appeal [Nevo] (2022), paras.  17-19; Appeal Petition/Administrative Claim 6573/19 Lanzman v.  Ministry of Education [Nevo] (2020), para.  6).  However, since this argument was not raised by any of the parties, I did not find that it should rule on the petition.

Delay

13. The obligation to act without delay is enshrined in Regulations 3 and 4 of the Administrative Courts Regulations (Procedures), 5761-2000, which are as follows:
14. (a) A petition shall be filed on the date prescribed by law.

(b) If no such date is set, the petition shall be filed without delay, according to the circumstances of the case, and no later than forty-five days from the date the decision was lawfully published, or from the date on which the petitioner received notice of it or from the date on which the petitioner became aware of it, whichever is earlier.