Clause 25.1 for general explanatory notes and guidelines for submitting submissions of document 1 to a tender, constitutes a general clause in the tender, which is in the structure of the tender after defining documents that must be attached to the proposal (for the purpose of proving compliance with prerequisites). Moreover, in section 25 itself, it was noted that what is stated therein does not derogate from the prerequisites regarding the protection of workers' rights detailed in this document. Since, a reading of section 25.1 shows that there is a contradiction (or at least incompatibility) between it and what is stated in the prerequisites in section 11.2, it is clear to any reasonable person that there was a clerical error in section 25.1 with respect to the number of previous criminal convictions leading to the disqualification of an offer, which should be more than two - as specified in the prerequisites" (paragraphs 46 and 48 of the reply); errors in the source).
The affidavit submitted in support of the reply article, by Ms. Yaarit Harush, Director of the Tenders and Engagements Department at the Council, does not support paragraphs 46 and 48 of the reply.
The ISBB did not bring an affidavit of the party that drafted the tender, a party that can shed light on the intention and the sequence of events that led to the fact that in the tender two different provisions were set in relation to the disqualification of a bidder for convictions for violations of labor laws.
In the absence of a minimal evidentiary basis, I cannot accept the argument that this is a clerical error, especially since in the interpretation of tenders, restraint and caution must be exercised with respect to such a claim, as it is liable to harm equality between the participants and the potential participants.
- The mere fact that two different provisions, of varying degrees of severity, were established in relation to the disqualification of a bidder for convictions for violations of labor laws, does not mean that the lenient provision has the upper hand. Or perhaps the "writer's error" is actually in the lenient provision, which appears in clause 11.2 of the tender? The tender arranger devoted a dedicated chapter to the disqualification of a bid due to a violation of labor laws. These are not general explanatory notes and are not instructions for submitting proposals. This is not a general clause, but rather a specific chapter regarding the disqualification of an offer due to a violation of labor laws. It is not related to the chapter on documents to be attached to the proposal (chapter 24).
I did not find any basis for the reasoning, which is not supported by anything, that it is precisely in this chapter that instructions were written inadvertently, with clerical errors, and it is precisely the general chapter regarding threshold conditions that reflects the intention of the tender arranger. In the absence of factual details on the part of the Council, and in the absence of an affidavit on this matter, it is not possible to accept the claim of a clerical error but only about the secret of the argument in the reply.