- When the claim of "clerical error" is rejected, the two different provisions regarding the disqualification of a bidder for convictions for violations of labor laws remain in place. In other words, the participant in the tender is required to comply with the two provisions, the stringent one and the lenient one (which in any case is "swallowed" by the stringent provision). The provision that states that a proposal in which the bidder or anyone on his behalf has been convicted in the last three years before the deadline for submitting bids must be disqualified for at least one criminal offense relating to labor laws.
Indeed, the rejection of the claim of "clerical error" and the Council's lenient interpretation lead to the disqualification of the winning proposal, which is not at all desirable. However, it can be assumed that the tender arranger, who determined the unexplicit requirement in clause 25 of the tender, was of the opinion that such a bidder was not fit to work under ISBB. The purpose of the demand is to protect workers' rights. The Tender Arranger gave great weight to this purpose in setting a stringent requirement, which expresses the ethical approach of the Tender Arranger on behalf of the Council. I did not find justification for retroactively changing the provisions of the tender, in order to save the proposal of Mag from being disqualified.
- The importance of strict observance of labor laws and the protected interest underlying such a condition was discussed by the Supreme Court in one of the following cases:
"... The regime for the protection of the rights of a bidder's employees in a public tender is an integral part of the tender laws by force and recently also in practice. This regime is derived, first and foremost, from the duty of loyalty to the public of the administrative authorities... from the work because the goals for which they operate are not purely economic... and the subordination of the actions of these authorities to everything that is included in public policy, that is, to 'basic principles of the legal system'... There is no dispute that the protective laws at work are the very essence of these principles. This is also the reason for the case law that 'when the state engages with external parties, it is entitled and even obligated to do what it can to ensure the protection of the protective laws and to ensure that the scope of the violation of workers' rights is reduced'... and everything that is said in the state, in this respect also applies to the local authorities, which are subject in their action to the same principles of public law" (Appeal Petition/Administrative Claim 9241/09 White Snow 1986 in Tax Appeal v. Ashkelon Municipality [Nevo] (given on July 8, 2010)), paragraph 3 of the judgment of the Honorable Justice E. E. Levy and the references therein).