Discussion and Decision
- After examining the arguments of the parties and the tender documents, I have come to the conclusion that The petition should be accepted, in the sense that the decision on MAG winning the tender will be canceled, due to non-compliance with the provision of Clause 25.1 of the tender, in view of its conviction for criminal offenses relating to the Labor Law, in the three years prior to the submission of the bid.
Chapter 25 of the tender revolves entirely around "Disqualification of a proposal due to violations of labor law". According to the clear language of the section, it is not intended to detract from the prerequisites, but rather to add a binding condition regarding the absence of convictions in the three years preceding the submission of the proposal for a criminal offense relating to labor laws.
Although this provision does not appear under the chapter "Prerequisites" (Chapter 11 of the tender), In terms of its content and essence, this is a threshold requirement, since a participant who does not meet the requirement - His proposal is rejected. Section 25 states this clearly and emphatically, which is unambiguous. The disqualification of a bid under clause 25.1 does not depend on the content of the bid itself, score, or any other criterion except for the number of convictions that the bidder or anyone on his behalf has had in the last three years. Therefore, the mere fact that this section is written under a different heading does not change its essence, as a prerequisite.
- A prerequisite, in essence, is a "prerequisite for participation in a tender". The requirement in section 25, and the sanction that accompanies it - Disqualification of Proposal - This means that this requirement constitutes a threshold requirement. Anyone who does not comply with it is disqualified, without going into the examination of the content of the proposal itself.
The prerequisites must be met in the bid or bidder before the deadline for submitting bids. Acceptance of a bid that does not meet the prerequisites constitutes a violation of equality vis-à-vis the other bidders, and towards potential bidders who refrained from participating in the tender knowing that they do not meet the prerequisites. The legalization of a bid that did not meet the prerequisites on time, even if it fulfills it after the deadline for submitting bids, gives an unfair advantage to that bidder, and is equivalent to an unequal change in the prerequisites in a tender retroactively (Appeal Petition/Administrative Claim 1811/09 Asum Building Contracting Company in Tax Appeal v. Sdot Negev Regional Council [Nevo] (given on January 6, 2010)).
- As is well known, prerequisites for a tender, as any provision in the tender, They are interpreted according to the rules of purposive interpretation. The starting point for a conditional interpretation of one of the tender terms is its language. Among the linguistic options, the option that optimally realizes the objective purpose of the condition and the public goals and interests it is intended to achieve will be chosen (Appeal Petition/Administrative Claim 2126/10 Meteor Systems Technology and Organization in a Tax Appeal v. Orot Employment Administration - The Inter-Ministerial Tenders Committee (Given on December 8, 2010)).
Another principle in the interpretation of prerequisites is that in cases where there is ambiguity regarding the interpretation of the prerequisites, an interpretation that satisfies the bids of the tender participants should be preferred to an interpretation that disqualifies them (Appeal Petition/Administrative Claim 5399/14 Mor Company for Marketing of Building Products (1992) in Tax Appeal v. A.P. Formica Center (1998) in Tax Appeal [Nevo] (given on January 24, 2016). "However, this interpretive rule is applied in those situations in which there are a number of reasonable interpretations that are consistent with the language of the tender and its purpose, in order to prevent a situation in which a proposal that meets the conditions of the tender will be disqualified according to their reasonable interpretation" (Appeal Petition/Administrative Claim 6117/15 G.I.A. Initiated in Tax Appeal v. Israel Land Authority [Nevo] (given on June 23, 2016)).