It was also determined in clause 30.8 of the tender that the committee reserves the right to hold negotiations with the bidders or any of them if it deems it appropriate. To complete the picture, we will also turn to clause 20.3 of the tender, in which it was determined that: "In any case of reservation from the terms of the competitive proceeding, including in the event of a change or omission or addition made by the bidder in his bid compared to what is required in the competitive proceeding documents, or any other change ... In any way or form...", the tenders committee will be entitled to disqualify the bidder's proposal, ignore the reservation, view the reservation as a technical defect that can be qualified, or demand that the bidder amend his proposal. These provisions indicate an effort by the tender arranger – the Ministry of Transport – to maintain maximum flexibility with regard to the possibility that there will be a need, after the submission of the proposals, to change the "rules of the game" set out in the tender provisions. I will admit that I am not convinced that all the powers that the Ministry of Transport sought to leave in its hands are consistent with the essence of the competitive proceeding (see in this regard - Appeal Petition/Administrative Claim 1873/12 Asum v. Ben-Gurion University [published in Nevo] (August 6, 2012) in paragraph 6 of the judgment of the Honorable Justice N. Hendel, and in paragraphs 3-5 of the judgment of the Honorable Justice Hayut. See also the words of the Petitioner's counsel at p. 1 of the transcript at paras. 19-21), but I did not hear a real argument in this direction, and therefore I will assume that these provisions are valid.
- The application of all of the above to the circumstances of the case before me leads to the conclusion that the petition should be dismissed, for two reasons, which we will discuss below; First, because there was no mistake in the determination of the tenders committee that in the circumstances of the case the defect that occurred in the Petitioner's proposal cannot be cured. And secondly, because even if the defect could have been corrected, the tenders committee had discretion as to whether to correct it, and I did not find a defect in the manner in which the committee exercised its discretion.
- Let us begin with the first reason.
The tenders committee did not see fit to allow the correction of the defect because in its opinion it is a material defect in the Petitioner's proposal, the amendment of which is liable to harm equality. I am of the opinion that the committee has determined so in law. Indeed, the defect that occurred in the Petitioner's proposal is not a minor technical defect, such as a mere calculation error or omission of a document that was required in accordance with the terms of the tender, and even though it was in the Petitioner's possession prior to the deadline for submitting the proposals, it was not attached to its proposal. Such defects are defects that can be corrected in accordance with case law, including the Peony of the Forest ruling , because from reading the proposal itself it is possible to understand the nature of the defect and how it can be corrected. Correcting technical defects of this kind does not actually require receiving any clarification from the bidder, or submitting a revised proposal on its behalf. Since defects of this kind are obvious defects on the face of them, and since the manner in which they are corrected is also clear, the repair of such defects does not require the consent of the bidder, and he is not entitled to object to their correction. Therefore, the correction of such defects does not transfer the power of acceptance to the bidder, and there is also no concern that the correction of such defects will spill over into improper negotiations with the bidder.