The labor laws mentioned in the terms of the tender are social laws whose purpose is to protect the rights of the employees employed by the winning company. I am unable to determine, as a trivial matter and without any evidentiary basis, that the tender arranger made a clerical error in setting a strict condition for the protection of the workers' rights. This is especially so when it comes to a tender for a manpower-intensive employment format, as also appears in the tenders committee's deliberations (see the minutes of the tenders committee of February 19, 2025).
- I will add that the discrepancy between clause 11.2 and clause 25.1 is evident from a reading of the tender. It is puzzling that Mag, which wishes to ignore the existence of clause 25.1, did not approach ISBB with a question of clarification after the publication of the tender, prior to the submission of the proposal. Asking for clarification would, it seems, have cleared all doubts. In Mag's reply, it was stated that it made a mistake in clause 25.1 of the tender (clause 13 and clause 73 of the response). If MAG noticed this "mistake", it could have been expected that it would raise a question of clarification, and not rely on the tenders committee to ignore an explicit and unequivocal provision in the tender. Leaving ambiguity in this matter, while relying on "mistake" is inconsistent with the principle of good faith.
- It should be noted that Zalul did not raise the argument regarding the disqualification of the bid due to clause 25.1 of the tender in the applications to the Council. No satisfactory explanation has been given, but I have not found that this leads to the rejection of the petition, in view of the clear disqualification of the winning bid and the violation of the principle of equality. Zalul's conduct in this context will be taken into account in the matter of expenses.
- In view of the conclusion that the decision to win MAG should be cancelled because of clause 25.1, there is no reason to demand and decide on the claims relating to the prerequisites regarding an attempt, in accordance with clause 11.4 of the tender terMs.
Without planting rivets, I will only note that on the face of it, there is no room to intervene in the conduct of the tenders committee. MAG has attached the references required by the terms of the tender to substantiate the previous experience. When doubts arose, in light of Zalul's request, the tenders committee deepened the examination, including contacting the local councils to which MAG allegedly provided cleaning services and obtaining approval from Mag's accountant. The determination of how to ascertain, from a factual point of view, the compliance of a bidder with threshold conditions is at the discretion of the tender owner. This was determined in the tender and the tenders committee was careful with MAG beyond the provisions of the tender. On the face of it, there was no ground for the court's intervention.
- As for Mag's request to file a supplementary argument, the allegation there does not help it. Regarding Section 2b(b)(1) The Public Entities Transactions Law, 5736-1976, does not impede the inclusion of a more stringent provision in the tender. As for other tenders that were published, it was claimed, by ISBB, the provisions in other tenders do not indicate what ISBB's intention was in drafting the tender in the proceeding before me, and it is difficult to draw from them a far-reaching conclusion of clerical error in the disqualification provision. Each tender is interpreted according to its language and purpose. The interpretive weight of booklets of other tenders is very low, if at all.
Finally , the petition is accepted.