Negative previous experience:
In accordance with the authority of the tenders committee, the past experience with your client was examined, when the committee found that there is solid evidence indicating continuous non-compliance with the standards required to carry out the work.
Although your client has been providing services to the council continuously for many years, many complaints have been received about the level of cleanliness. The tenders committee is of the opinion that this indicates a material problem in the quality of the service provided.
The bidder did not fulfill its obligations in a thorough, proper, fair and professional manner, did not act as a reasonable authority should have expected from a service provider, and this continuously harmed the quality of the service provided to the public.
After an in-depth examination of all the data and evidence, and based on the accumulated experience, the committee reached the conclusion that there is a real concern that your client will not be able to meet the requirements of the tender and the required quality of service.
It should be emphasized that the committee's decision is based on the actual execution of work and not only on formal engagements, with the emphasis on the quality of the service provided in the field.
There is an increased obligation on the tenders committee to examine the bidder's conduct in previous engagements, especially when it comes to an essential and ongoing service.
In light of all of the above:
The tenders committee has decided that there is no choice but to reject your bid in the tender.
- The decision was made after a proper administrative procedure that includes a hearing and examination of all the evidence
- The decision is based solely on practical and professional considerations..."
The scope of the court's intervention -
- Before discussing the arguments on their merits, we will recall that the case law has repeatedly determined that the court does not sit as an appellate court against the decisions of a tenders committee and does not replace its professional discretion with its own discretion. The scope of judicial review is limited to examining the correctness of the administrative proceeding, including whether the decision of the tenders committee is within the realm of reasonableness, if it was made for practical considerations and if there was no defect in it that goes to the root of the matter. Judicial intervention in tender proceedings will be done carefully and only in exceptional cases of a material deviation from the basic principles of the tenders laws. which exceeds the scope of reasonableness given to the authority (and see Appeal Petition/Administrative Claim 20037-03-25 Zohar Hutzot B TaxAppeal v. Kiryat Ono Municipality, paragraph 20 of the judgment of Judge Kasher [Nevo] (April 22, 2025); Appeal Petition/Administrative Claim 6131/17 Shimshon Taxis in Tax Appeal v. Israel Railways, paragraphs 28-29 of the judgment of Judge Elron [Nevo] (February 18, 2018); Appeal Petition/Administrative Claim 7514/21 by the Israel Security Hotline inTax Appeal v. State of Israel, paragraph 20 of the judgment of Judge Grosskopf [Nevo] (March 14, 2022)). In the assessment, it has been ruled more than once that the court does not serve as a "supreme tenders committee", and its intervention in tender proceedings is limited to situations in which there is a material defect, which goes to the root of the matter (Appeal Petition/Administrative Claim 6466/19 Ministry of Defense v. Nursing Companies Association, paragraph 14 [Nevo] (October 11, 2020)); Appeal Petition/Administrative Claim 7514/21 by the Israeli Security Hotline inTax Appeal v. State of Israel, para. 21 [Nevo] (March 14, 2022)). In the present case, I did not find that the decision exceeded the realm of reasonableness or that there was a real flaw in it in a manner that justified intervention.
- In summary, I will say that the scope of the hearing that the tenders committee was supposed to hold, after the judgment in the previous petition, was limited, as stated, to the discussion of the Petitioner's proposal on its merits, when the judgment explicitly determined that the tenders committee would act at its discretion in examining the proposal on its merits, after allowing the Petitioner to voice its arguments on the issues that would arise in connection with the proposal itself.
- The documents show that after the judgment and before the hearing, the Petitioner was asked for documents, correspondence was conducted regarding the documents, the documents were transferred, the hearing was held, the Petitioner's representatives (who was represented) were heard at length, questions were asked, answers were given, during the hearing it was clear what the Petitioner was asked to provide a response to, the minutes of the hearing extend over 3 pages, after which the Tenders Committee's recommendation was given, the Head of the Council adopted the recommendation, And the letter of rejection came out. On the face of it, this is a proper proceeding and is consistent with the judgment in the previous petition.
- I also did not find it possible to accept the Petitioner's argument that the reasons for not accepting her proposal were "born" a week after the decision, "retroactively". A careful examination of the documents reveals that the chronological arrangement was as detailed in the introduction, namely: the minutes of the hearing meeting, in which the arguments regarding the Petitioner's proposal were discussed, and from which it emerges that the proposal could not be accepted, was on August 13, 2025, a day later, on August 14, 2025, the tenders committee's decision was made to recommend not to accept the proposal, and when the minutes of the hearing meeting were attached to the recommendation and it was noted that the reasons are presented in the minutes, Three days later, on August 17, 2025, the decision was made by the head of the council, and two days later, on August 19, 2025, a letter of rejection was sent. The postponement letter does not include "new" or "different" reasons, but only summarizes the reasons that were "on the table" at the hearing. Therefore, it is difficult to accept the argument that the decision was arbitrary and unreasoned and that the reasons were "invented" retroactively, although I agree that the wording of the minutes of the hearing is less orderly than the wording of the postponement letter.
- Thus, the Petitioner did not point to a flaw in the proceeding, did not show that the proceeding was contrary to the judgment in the previous petition, and did not show that "the result was known in advance", or that "the reasons were given retroactively" or that the Respondent's intention was to thwart the proposal in advance or that the result was manifestly unreasonable.
- This is a summary of my position and I will detail the reasons in further detail.
The Tenders Committee's Attitude to the Applicant's Experience and Quality of Service -
- I cannot accept the Petitioner's argument that the Committee was prevented from discussing the issue of the Petitioner's past experience or the issue of the quality of service, and that the argument that the discussion of these issues constitutes an "extension of the front" or that the Respondent is prevented from raising "new claims that were not raised before" should be rejected.
- First, in the original tender documents there is a clear reference to the subject (and I will note that the Petitioner did not attach all the tender documents to the petition, but only two pages out of all the documents, and the full documents exist in the previous petition). Clause 8 of the tender, which is entitled "Prerequisites for Participation in the Tender and References", states in clause 8.2 that one of the conditions is "proven experience" in accordance with years of experience and scope of activity, and in clause 8.4, Titled: "Negative Experience", it reads as follows:
"The tenders committee will be entitled to disqualify a proposal in the event that it turns out that the bidder has bad previous experience with the council and/or other local authority and/or a government institution and/or a government subsidiary and/or a government auxiliary body. Bad experience for the purposes of this section shall relate to the years 2020 to 2024. "Bad Attempt" - a negative written opinion and/or acriminal appeal against the bidder on behalf of someone who has ordered work from the bidder in the past, as well as an offense...".
- Second, the discussion of the matter does not contradict the judgment in the previous petition. In the judgment agreed upon in the previous petition, it was determined that the Petitioner's proposal "will be brought before the tenders committee for discussion... The tenders committee will give its decision on the merits of the proposal... and will enable the Petitioner to voice its arguments in all matters relating to the issues that will arise in the context of the proposal itself." The Petitioner argued that the judgment limited the Committee's discretion to "the details and components of the Petitioner's proposal in the tender only" and that claims regarding the quality of service are "suppressed claims" that exceeded this authority. This argument should not be accepted. The reasons for the rejection - the quality of service and previous experience - are professional and legitimate considerations that the tenders committee was entitled to take into account. And she even had to examine.
- The interpretation of the terms "on the merits of the proposal" and "issues that will arise in the context of the proposal itself" that exist in the judgment in the previous petition is a sufficiently broad interpretation that includes a comprehensive examination of the bidder's ability to provide the required service, including the quality of the service.
- After all, it is clear that it was not possible to examine only the financial component of the proposal, when according to the opinion the financial component was in accordance with the provisions of the tender, and when there were no "competing" bids for comparison.
- Therefore, the tenders committee was not prevented from considering these aspects as part of the substantive examination of the proposal. In particular, when it comes to an essential and ongoing service, such as cleaning in educational institutions and public buildings, when previous experience and the quality of the service are an inherent and essential part of the "body of the proposal" and the manner in which it will be implemented in practice, and when there is increased importance to the quality of service in these institutions, due to its direct impact on the health of students and staff.
- In this context, see the judgment inAdministrative Petition (Administrative Petition) 4868-06-22 Haim Moshe Margalit Nurseries v. State of Israel Ministry of Welfare [Nevo] (August 14, 2022), where there is a reference to the fact that in exceptional cases it is possible to disqualify a proposal due to a negative "bad" experience, even if this is not determined as a prerequisite, when two conditions are met. The first condition examines the quality of the service that is the subject of the tender, In other words, there are cases in which the nature of the service justifies disqualifying a bid by a bidder with whom the previous experience is negative, even if the terms of the tender do not determine the previous experience as a prerequisite. The second condition examines the intensity of the negative attempt, and states that there may be cases in which the experience in the past is "so negative" that there is room to disqualify the proposal due to the bad experience in any case (and see that an appeal submitted to the Supreme Court (Appeal Petition/Administrative Claim 5531/22) [Nevo] was rejected after the appellant withdrew the appeal). In the tender we are dealing with, as demonstrated above, we are dealing with an issue that is anchored in a chapter dealing with the prerequisites, and therefore, in the context of all the above, the conclusion is that there was room to examine the issue and give it consideration.
- Third, the Petitioner did not raise any argument at the hearing regarding the fact that the issue of past experience is irrelevant, and it was seen that the Petitioner's counsel was even present at this meeting and argued on her behalf. The Petitioner did not believe that it is forbidden to discuss the issue of past experience, or that it is not required, or that the hearing deviates from the judgment in the previous petition, and her representative even responded in detail to the arguments raised regarding the quality of service. and presented relevant documents on his behalf. During the hearing, specific allegations were raised regarding deficiencies in the quality of the service, a sample letter was presented, and one of the committee members even testified that when he was the principal of one of the schools within the council, there were constant problems regarding the quality of cleaning, for two years. The Petitioner's representative addressed the claims, and with regard to a particular complaint, he explained that the complaints in that case stemmed from the allocation of only one cleaning worker to each school, meaning that the quality of the cleaning was insufficient, but this stemmed from the fact that it was necessary to assign an additional worker in exchange for payment for another worker, and not from basic deficiencies in the performance of the work on behalf of the Petitioner. As noted, the Petitioner's representative even claimed that he had letters of recommendation from other school principals and detailed his position.
- From the aforesaid, it appears that the discussion on the issue of the quality of service and past experience was exhaustive, the Petitioner's right to plead was respected, and the main thing is that the discussion on the matter does not exceed the scope of the inquiry that should have been made after the proposal returned to the Tenders Committee's table.
- The fact that the issue was not part of the decision regarding the cancellation of the original tender is irrelevant, since at the stage when the decision regarding the cancellation of the original tender was made, there was no need to examine the proposals on their merits. At the initial stage, it was decided only to cancel the tender, and only after the judgment in the previous petition should the proposal be examined on its merits. Therefore, it is clear that these issues were not part of the original reasons for cancelling the tender, it is clear that they did not come up in the opinion, and the respondent's position should not be viewed as a "suppressed claim".
The reasonableness of the decision regarding problematic previous experience and insufficient quality of service -
- Since I have determined that the decision did not exceed the authority of the tenders committee, the reasonableness of the decision must be examined. We will preface another reference to a judgment that reiterated the basic principle regarding the scope of the court's intervention, in a case where we were talking about a bidder in respect of which a "negative previous experience" was demonstrated - Administrative Petition (Tel Aviv Administrative) 55975-06-19 Linum inTax Appeal v. Netivei Israel - The National Transportation Infrastructure Company inTax Appeal [Nevo] (January 9, 2020) where it was ruled that:
"The Court for Administrative Affairs does not sit as a supreme tenders committee on tender committees and does not replace their discretion with its own discretion, except in cases where a defect is found that is inconsistent with the principles of the Public Tenders Law. The court must examine whether the decision of the tenders committee was made reasonably, i.e. - fairly, in good faith, honestly, equally, without arbitrariness and whether the relevant considerations were considered. Within the scope of the relevant considerations, the tenders committee is also entitled to consider negative previous experience accumulated for a particular bidder's obligation, even if it is the cheapest bid and especially if the previous experience component was explicitly included in the tender terms."