Indeed, the interpretive rule according to which an interpretation that satisfies the proposals should be preferred over an interpretation that rejects them must be reconciled with the language of the text and its purpose. Adopting an interpretation that has no basis in the language of the tender will harm all those bidders who refrained from submitting a bid.
- In the case before me, The condition set out in clause 25.1 of the tender terms is stringent compared to clause 11.2 of the tender terms, which also deals with convictions for violations of the labor laws.
Article 25.1 states that "If The bidder or any of the persons with an affinity to him who have been convicted in the last three years before the deadline for submitting bids for at least one criminal offense relating to labor laws... His proposal will be rejected".
In contrast, Section 11.2 states that "During the last 3 years before the deadline for submitting bids in a tender, the bidder and any person related to it... have not been convicted of more than two offenses between violating labor laws...".
The discrepancy is with regard to the number of convictions for violations of labor laws that lead to the disqualification of the bidder. While according to section 25.1 this is one offense in the last three years, according to section 11.2 it is more than two offenses in the last three years.
- According to the Council, the drafter of the tender, the clause is not defined as a prerequisite and this is a clerical error. It was claimed that her intention was that a bidder or a person with an affiliation with him had not been convicted of more than two offenses in the past three years. This claim regarding a clerical error, which was raised in the response to the petition on behalf of the Council, was brought in a laconic manner:
"In addition, this is a clause in which there was a clerical error, since in the threshold conditions defined in the tender, clause 11.2 was included, which related to the existence of criminal convictions of the bidders, in relation to more than two offenses...