Second, The Respondent 4 argues that the gap in the price component between its offer in relation to the category 2 and the appellant's proposal was so significant, Thus, even if the tenders committee had amended the grade given to the appellant in the quality component based on the recommendation of the Fatah Municipality-Hope or relies only on the recommendations given to the appellant in the framework of the second round, This did not lead to her winning in relation to the category 2.
Regarding the balance of convenience, The Respondent 4 argues that the balance of convenience is tilted in its favor since since the announcement of its win, the bid guarantee has been replaced with a performance guarantee in the sum of 200,000 Q"VIII, and agreements were signed between it and a number of customers for advertising on the facilities that are the subject of the tender. Therefore, According to her,, Every day that its winning of the tender is delayed, Absorbing is significant damage.
- Respondent No. 3, in the reply it submitted, also petitions, in addition to the rejection of the application for temporary relief and the cancellation of the temporary order, also to dismiss the appeal against the site. Thus, respondent 3 also relies on the reasoning of the trial court, and it also emphasizes that the appellant's petition was filed with delay and that the appellant acted in bad faith, as noted in the judgment of the trial court. With regard to the balance of convenience, Respondent 3 claims that it has also sufficeed, since the announcement of its winning of the tender, to engage with third parties, and that in addition to the damage caused to it and those third parties by the delay in the execution of the works that are the subject of the tender, this delay harms the public interest for which the Municipality and the Development Company published the tender that is the subject of the appeal.
- Similar to respondents 2-3, in the reply submitted on their behalf, the Municipality and the Development Company also rely on the reasons for the trial court's ruling. In addition, and even like respondents 2-3, the Municipality and the Development Company also emphasize that the Appellant's petition was filed with delay, and claim that the petition was filed with a lack of cleanliness in view of the Appellant's conduct vis-à-vis the Petah Tikva Municipality, as described above. Against this background, the municipality and the development company claim that the chances of an appeal are slim. With regard to the balance of convenience, the municipality and the development company claim that every day that the works that are the subject of the tender are delayed, they are deprived of income from franchise fees at the rate of tens of thousands of shekels in a monthly calculation, and therefore, in their view, the balance of convenience is tilted in their favor.
Discussion and Decision
- After reviewing the notice of appeal, the request for interim relief in the appeal, and the respondents' response to it, I have reached the conclusion that the appeal should be dismissed. This is in accordance with our authority under Regulation 138(a)(1) of the Civil Procedure Regulations, 5779-2018, which applies to the proceeding before us by virtue of Regulation 34(a) of the Administrative Courts Regulations (Procedures), 5761-2000.
- The starting point for our discussion is the deep-rooted rule whereby the court does not sit as a "supreme tenders committee" and does not replace the professional discretion of the tenders committee with its own discretion. Intervention in the decisions of the tenders committee is reserved for exceptional cases only, in which it was found that the tenders committee deviated materially from the basic rules of the tenders laws, as determined in legislation and case law (see, many examples: Appeal Petition/Administrative Claim 7383/23 Kfar Giladi Quarries Limited Partnership v. Israel Lands Authority, paragraph 21 to the judgment of Acting President Vogelman [Nevo] (May 28, 2024); Appeal Petition/Administrative Claim 2550/23 Namarna v. New Amidar National Housing Company in Israel Ltd., paragraph 14 of the judgment of Judge E. Stein [Nevo] (March 30, 2023); Appeal Petition/Administrative Claim 1856/22 Hai Nahmias Residences and Investments in Tax Appeal v. Peretz Bonei Hanegev (1993) Ltd., paragraph 13 of the judgment of Judge N. Sohlberg [Nevo] (August 18, 2022)).
I am of the opinion that the judgment of the trial court is consistent with the precedent I discussed above, So there is no room for the appeal to be accepted.
- As described above, the appellant's first argument is that the tenders committee dissolved from its discretion and relied entirely on the consultant, and for this reason all the decisions made by it, including the decision to select respondents 3-4 as the winners of the tender, should be disqualified. Indeed, there is no dispute that a tenders committee is not permitted to dissolve from its discretion and delegate all of its powers to an external party. However, it was emphasized in the case law that there is no impediment to the tenders committee being assisted and consulted by such an external entity, and in the appropriate circumstances, the assistance of a consultant for the purpose of examining proposals and examining the bidders' compliance with the required trial conditions in the tender (as was done in our case), is also desirable (see, for example: Appeal of Petition/Administrative Claim 6117/15 10.A. Initiation in Tax Appeal v. Israel Land Authority - Southern Business Space, paragraph 26 of the judgment of Judge S. Jubran [Nevo] (June 23, 2016); Appeal of Petition/Administrative Claim 10392/05 Ozan Brothers Construction Company in Tax Appeal v. Israel Lands Administration, paragraph 60 of the judgment of Judge A. Peerand Kachia [Nevo] (July 5, 2009); and the judgment of Justice D. Dorner in Appeal Petition/Administrative Claim 5678/01 Eden Broadcasting in Tax Appeal v. Afik Rom - The New Israeli Channel Ltd., IsrSC 56(1) 917, 923 (2001); For more on the issue of the reliance of a tenders committee on an external consultant, see: Omer Dekel Tenders, Vol. 2, 30-33 (2006)).
In our case, in its judgment, the trial court held that although with regard to the work interface between it and the consultant, the tenders committee could have functioned better, and that the tenders committee relied intensively on the consultant's opinion - it was not found that the tenders committee was dissolved of its discretion, but rather that its decisions were made after exercising independent discretion. This determination, which is mainly a factual determination, was based, inter alia, on the hearing of the consultant and the representative of the tenders committee in a hearing held before the trial court. In view of this, I do not believe that there is room for our intervention in this determination.
- Another argument raised by the appellant is that the decision of the tenders committee to hold a second round of recommendations in respect of it and in respect of respondent 3, violated the principle of equality and the principles of tenders law. This argument should also be rejected:
First, and as the trial court also held, In my opinion, there is truth to the respondents' argument that the very fact that the said argument was raised by the appellant, Tainted by innocence-32. This, After the appellant acted in a manner that she should have known would cause a representative of the Fatah Municipality-Hope, Mr. Sharabi, To contact the consultant and the tenders committee and demand that the score given to the appellant be changed in the quality component, And now she is complaining about another round of recommendations that was held as a result of this.