In the tender, it was noted that the selection of the winning bid, will be carried out on the basis of a formula according to which a weight of 80% For the financial offer (In other words, the bidder whose bid will include the highest franchise fees will receive the full score), and the weight of 20% will be given to the quality index, which will be calculated in accordance with the recommendations that will be given to the various bidders on-by local authorities with which they have worked in the past.
- The deadline for submitting bids in the tender was set for December 16, 2024. Four days earlier, on December 12, 2024, at 09:26, the Development Company sent an email to the bidders in the tender, entitled "Update of the Submission Date 19.12.2024 - Clarification Documents Kiryat Ono Tender 24.24" (hereinafter: the first email), in which it was written as follows:
"Attached is Clarification Document 4
Submission date update 19.12.2024 at 13:00 at: 41 Yitzhak Rabin St., Kiryat Ono, Office of the Director General, 3rd floor.
Please confirm the receipt" (emphasis in the original - 10:20).
Added to the written text quoted above, Email"Attached to the first were all the clarification documents that were published on the-by the tender organizers up to that point, Including a clarification document 4, Held on the day 11.12.2024, It noted that the deadline for submitting bids has been postponed to a day 19.12.2024, At 1 o' 13:00.
Later that day (12.12.2024), At 1 o' 16:42, Sent by the Development Company, Bidders in the Tender, Email"Additional, which bears the same title (Below: Email"To the second). The content of the email"The second one was almost identical to the content of an email"For the first, When the only change that exists in it is that the line has been deleted from the written text "44"In Clarification Document 4".
Also, Also for email"Attached to the second were all the clarification documents that had been published up to that day, However, clarifications were added to the document 4, Which was also attached to the email"For the first, Attached to Email"To the second additional clarification document, Fifth in number (Below: Clarification Document 5). This, Without the fact that the very attachment of an additional clarification document is highlighted in the email. In the first paragraph of the clarification document 5 It was noted that: "Wording of the Offer Guarantee as mentioned in the Appendix 4 The tender brochure is modified and will be replaced by an appendix 4 What's new attached to this clarification document". A study of the texts shows that while Fox-According to the wording of the guarantee attached in the appendix 4 To the original tender brochure, Each bidder was required to sign a bank guarantee up to an amount of 25,000 Q"VIII, When it was stated in the letter of guarantee that: "In any case, all the payments we will pay for-According to this writing, the amount of the guarantee shall not exceed Plus indexation differentials..." (Highlight Added - J' 20'), In the amended letter of guarantee, Attached to the clarification document 5, Last sentence removed, Thus, the requirement that the amount of the bank guarantee be linked to the index was omitted. Another change made to the clarification document 5, It was noted in its framework that: "Wherever you log in 'The Company Kiryat Ono Ltd."From' - This will be considered 'Kiryat Ono Development Company Ltd."From'".
- On December 19, 2024, the last day for submitting bids in the tender, proposals were submitted on behalf of five bidders: the appellant, respondents 3-5, and another bidder who is not a party to the present proceeding. There is no dispute that the Appellant (as well as the other bidder) attached a bank guarantee to its bid in accordance with the amended version that was attached to Clarification Document 5, while Respondents 3-5 attached a bank guarantee to their bids in accordance with the original version, which was attached as Appendix 4 to the tender booklet.
- On December 23, 2024, the tenders committee opened the bids box, and the five proposals that were in the box were transferred for examination and evaluation by Adv. Guy Keret, who served as an advisor to the tenders committee (hereinafter: the consultant). In his opinion, which was sent to the members of the tenders committee on December 26, 2024, the consultant noted that in his opinion, there is no reason to disqualify the proposal of respondents 3-5, who attached a letter of guarantee to their bid in accordance with the original wording (and not in accordance with the amended version that was attached to the clarification document 5). The counsel argued that according to his position, the differences between the wording of the letters of guarantee have no meaning, and they do not confer any advantage on respondents 3-5, so that these differences should be regarded as a technical defect in the guarantee that does not lead to the disqualification of the proposal, in accordance with the precedent set out in the appeal of Petition/Administrative Claim 5834/09 Peony Hahoresh in Tax Appeal v. The National Insurance Institute [Nevo] (January 31, 2010) (hereinafter: the Peony of the Forest case)).
In addition to this, After reviewing the submitted proposals, Recommended by the Advisor, To the Tenders Committee, Choose the Respondent 3 As a winner in relation to the category 1 After receiving a cumulative score of 99.52 (79.52 In the price component and-20 In the Quality Component) In relation to this category; and in the Respondent 4 As a winner in relation to the category 2, After receiving an accumulative score 96 (80 In the price component and-16 In the Quality Component), In relation to this category.