Later, the case inAppeal Petition/Administrative Claim 1362/20 Linum BTax Appeal Netivei Israel v. National Transportation Infrastructure Company BTax Appeal [Nevo] (April 6, 2021), and the Supreme Court rejected the appeal, ruling that the District Court rejected the petition in law, when it ruled that there was no reason to intervene in the decision of the tenders committee, which deals with professional aspects of expertise, and which, as a rule, the court will refrain from intervening. In the appeal, it was ruled that the decision of the tenders committee was based on its factual determinations regarding the existence of safety defects found in the appellant's conduct in the previous project and that:
"These determinations, within the framework of which the tenders committee referred to the nature, scope and severity of the safety defects, as clearly evident from the committee's minutes, are at the core of the professional judgment of the tenders committee, and we did not find room to intervene in them."
- In this case as well, the examination of the issue of past experience was carried out after an examination of documents (which were presented to the Petitioner during the hearing) and in addition, the matter was examined in light of the fact that the Petitioner is the current provider of cleaning services to educational institutions, and when there is nothing wrong with the committee examining the conduct of the bidder in previous engagements, including with the Respondent itself.
- I will also refer toAppeal Petition/Administrative Claim 58175-07-25 Al-Ayman Social Services in Tax Appeal v. Ministry of Welfare and Social Services, paragraph 17 [Nevo] (August 7, 2025) where the Supreme Court ruled that the tenders committee, when examining the issue of experience and quality of service, can also examine the experience it has with the bidders, namely:
"In any event, prior acquaintance between the tender arranger and bidders who contracted with him in the past is a necessity of reality, and it does not in itself lead to the disqualification of the bid (see: Appeal of Petition/Administrative Claim 2310/02 Association of Cities in the Dan Area (Sanitation and Waste Disposal) v. Dessal Merhavim, Earthworks Company Ltd., IsrSC 59(6) 337, 348-349 (2002); Appeal Petition/Administrative Claim 7357/03 Ports Authority v. Junction Engineers, Planning, Coordination and Project Management Ltd., IsrSC 59(2) 145, 159-160 (2005); Omer Dekel Tenders, Volume 2, 45 (2006). "
- From the aforesaid, it appears that the Tenders Committee's decision to reject the Petitioner's proposal was based, inter alia, on negative past experience and allegations of continuous non-compliance with the required standards, the decision was based on an infrastructure that was examined, after an in-depth discussion of the subject. The tenders committee, after addressing the Petitioner's claims, rejected the Petitioner's proposal based on "negative previous experience" and "many complaints about the level of cleanliness". These reasons were supported, according to the respondent, by external complaints, as well as by the direct familiarity of the committee members with the level of service provided in the educational institutions, by the feedback received from students and their parents, and by an in-depth and thorough examination conducted prior to the decision was made. This factual basis indicates that the decision was not arbitrary or baseless, and the court will refrain from intervening in the question of the quality of the work provided by the Petitioner.
- Another argument of the Petitioner is that in the past there were and will be tools in the Respondent's possession that enable the Respondent to supervise the quality of the service in real time and to cancel the engagement in the event of a fundamental breach. The Petitioner does not explain whether the intention is that these tools could have been used to terminate the engagement with it in the past, i.e., that if they were not used, the conclusion is that the service it provided would have been good; Or it intended to say that even if the service in the past was not good enough, it should not be prevented from engaging in the future, because if the service is at an insufficient level, the respondent will be able to make use of the aforementioned tools.
- In any case, I do not believe that the existence of the "tools" can change the outcome. In every tender there is a reference to an engagement that is signed with the winner of the tender, and the engagement (at the contractual stage, after the tender stage) is subject to contract law. Therefore, if the contract is breached, there are appropriate remedies. This does not preclude the possibility of examining a "negative" past experience, insofar as it exists. Regarding the failure to take proceedings against the Petitioner in the framework of the current engagement , the fact that the engagement with the Petitioner was not cancelled does not indicate that there were no complaints or that there is impropriety that the tenders committee reached the conclusion it had reached.
- In summary, I am not persuaded that there was a flaw in the tenders committee's decision regarding the quality of the Petitioner's experience, a determination that is at the heart of the professional judgment of the tenders committee, according to which there is "solid evidence indicating continuous non-compliance with the standards required to perform the work", "many complaints were received regarding the level of cleanliness" and that they attest to a "material problem in the quality of the service provided".
- Before concluding, I will further address the tenders committee's demand to receive from the Petitioner the documents as defined above (documents regarding payments to pension and study funds and attendance reports of the employees). The Petitioner claimed that there was no reason to demand the documents from her and that the demand deviated from the agreements in the judgment in the previous petition, and that it also indicates an attempt to "thwart her". I don't see things that way. The issue of compliance with the provisions of the Law regarding the social rights of all employees is also an issue that the tenders committee should have examined - and they saw that one of the prerequisites relates to this issue as well - clause 8.8, entitled: "Protecting the rights of the employees", and subsequently - it was determined in the tender provisions that the respondent is entitled to request the bidders to complete documents (such as in clause 10.2). Hence, it is not only its right but also the duty of the tenders committee to clarify this issue, which is anchored in the original tender documents. In any event, it is not necessary to expand the discussion, since the documents were transferred, examined, and the tenders committee's decision not to accept the Petitioner's proposal was not based on this issue.
Was it obligatory to accept the Petitioner's proposal as it is the "only qualification" proposal?
- In fact, the Petitioner did not explicitly claim that it was obligated to accept its proposal, just because it was a "single proposal", and for good reason. The law and case law make it clear that there is no obligation to accept a single proposal. On the contrary. The rule is that a single proposal should not be accepted automatically and the starting point is that the tenders committee will not generally recommend a single proposal.
- In the second appendix to the Local Councils (Regional Councils) Order, 5718-1958, which discusses the subject of tenders on behalf of the local council, section 22(f) states that:
"The committee will not, as a rule, recommend a proposal if it was the only proposal that was submitted, or if it remained a unit for discussion before the committee; The committee recommended, as aforesaid, that the reasons for the decision be recorded in the minutes."