Second, in clause 76 of the tender booklet it was determined that: "As part of the examination of the company's proposals [Development Company - Y. 20] reserves the right to contact any of the bidders, Anytime, All at its full and exclusive discretion, Please receive clarifications and/or completing documents and/or details and/or information, Of any kind, Related to his proposal". Clause 78 of the tender booklet added to this provision and stated that: "The company will have the authority to examine and consider in an expanded manner and not specifically proposals that are deficient/ambiguity or that raises legal questions regarding their compliance with the prerequisites and/or other". In addition, in clause 79 of the tender booklet it was determined that: "The company may (But you don't have to), At its discretion, [...] Allow details to be completed, Shortcomings, References and documents that are missing in the proposal/T, including for the purpose of [...] Determining the Proposal Score/T, Conduct inquiries and conversations with the bidder and/or with parties external to the bidder, Including public bodies in which the bidder operated, To summon the bidder's representatives for the purpose of holding an inquiry or hearing and to examine the proposal and the bidder in any way the company deems appropriate" (emphasis added - 10:20). In my view, which arises from the incorporation of the aforementioned clauses in the tender booklet, is that the tenders committee did not exceed its authority when it held a second round of recommendations in relation to the appellant and respondent 3.
Third, since the holding of the second round of recommendations did not change the decision of the tenders committee to declare respondent 3 as the winner of category 1, in any case no damage was caused by the holding of the said round of recommendations.
In my opinion, each of the above three reasons, and certainly their cumulative weight, justifies the rejection of the appellant's argument against the existence of the second round of recommendations.
- Even in the appellant's argument that the tenders committee should have disqualified the proposals of respondents 3-5 due to the existence of a defect in the guarantee that was attached to them, I did not find any substance: inthe Barak 555 case, this court was required to do so in a case whose circumstances are almost identical to our case. In that case, the tenders committee sent the bidders in the tender an email acknowledgement, two days before the deadline for submitting the proposals, in which it was noted that in the wording of the guarantees that were attached to the tender documents, the linkage clause was omitted, and therefore updated guarantees were attached to this notice, including an linkage clause, which the bidders were asked to attach to their proposals. Four of the five bidders saw the email, and amended the guarantee attached to their bids accordingly. The question before the court is whether there is room to disqualify the proposal of the fifth bidder, for whom the existence of the email message was omitted, so that the guarantee attached to his bid was submitted in the original version.
To this question, this Court answered in the negative, with the majority opinion (Memi Judge Tz' Zilbertal and with the consent of the judge From' EnlightenedShe explained her position as follows: