I would like to add my voice to the voice of those who call for the flexibility of the strict rule regarding the examination of defects in a bank guarantee and the disqualification of a proposal solely because of such a defect. In summary, (since this is not required for the purpose of deciding the matter at hand), My opinion is that a defect in the guarantee submitted in the framework of a tender should be examined according to the accepted tests (They are also not lenient, and rightly so) To examine the compliance of a proposal with any other prerequisites in the tender. Thus, and even in the essence of the matter, I am of the opinion that there is no reason to insist on the existence of the first condition that was determined in the matter Peony of the Forest (The condition that requires that it be possible to learn about the mistake from the guarantee itself), and that all the tests should place at the center the preservation of the principle of equality between the bidders and the good faith of the bidder..
- As described above, the difference between the amended letter of guarantee that was attached to Clarification Document 5, and the original letter of guarantee that was attached as Appendix 4 to the tender booklet, concerns the linkage of the guarantee amount - ILS 25,000 - to the index. Thus, while prior to Clarification Document 5 the guarantee was required to state the amount linked to the index, according to Clarification Document 5 such linkage was not required. In other words, the amendment in Clarification Document 5 was a lenient amendment, and the guarantee invented by Respondents 3-5 was a guarantee that benefits the tender advertisers, beyond what is required.
It is true that the-According to the customary law, Even a defect in the guarantee that makes it a beneficial guarantee (From the perspective of the tender publisher), May justify the disqualification of the proposal (See, For example: Appeal Petition/Administrative Claim 8748/13 Gilboa Regional Council v.' The Transporter Afula (A.VIII) [Nevo] (2.12.2014)). However, My approach, which I discussed above, Regarding the Flexibility of the Strict Approach to a Defect in a Bank Guarantee, Challah, And maybe even more intensely, Also on Benevolent Guarantees.