The situation is different with regard to the defect that occurred in the Petitioner's proposal. The Petitioner erred in the manner in which it fulfilled its proposal by including the amount of royalties that it was willing to pay to the Ministry of Transport in its business plan under the component of "other expenses" and not under the component of the "budget". This mistake was followed by other mistakes, in the sense of "an offense entails an offense." Thus, the Petitioner did not notice its mistake and as a result it submitted a proposal that contradicted the terms of the tender in that the amount of royalties it stated in its financial proposal was higher than the amount it stated in the Tender Clause in the Business Plan. It should be emphasized that this mistake is not a necessary result of the first mistake, which concerns the inclusion of the amount of royalties under the other expenses section. It could have been expected that even if the Petitioner made a first mistake in not including the amount of royalties in the Tender Tender Clause, it would make sure in the course of examining its proposal prior to submitting it that the amount of royalties that it stated in the financial proposal was not higher than the amount specified in the Tender Tender Clause. This was required and expected of it to do in light of the clear provision of clause 1.7 of Appendix 16 of the tender. However, it appears that the Petitioner did not properly examine its proposal before submitting it, and as a result it made a second mistake in that the amount of royalties that it stated in its financial proposal was higher than the amount specified in the Tender Tender Clause. Moreover, as the Petitioner herself agrees, she made another mistake in that she did not include, as required, the financing costs involved in the royalties that she proposed to pay to the Ministry of Transport, in her business plan under the Transportation Regulations, but rather under the section dealing with "Financing Expenses" (the words of the Petitioner's counsel at pp. 1, 28 - pp. 2, 2). It is therefore a matter of a multitude of mistakes. The nature of the mistakes that occurred in the business plan could notbe revealed from a reading of the Petitioner's proposal. Indeed, in practice, in the beginning, the nature of the mistakes was not fully clarified. The way to correct the errors was also not open and clear until the correction could be carried out in reliance on "clear objective evidence, which is before the tenders committee at the time the tenders box was opened", in the words of the Peonite Hahoresh ruling. Thus, at the outset, when examining the Petitioner's business plan, the Economic Subcommittee of the Tenders Committee did not understand at all that there had been an error in the proposal, but only understood that a large and unreasonable sum was recorded in the business plan in the other expenses section. In addition, even after the financial envelope of the Petitioner's proposal was opened , the tenders committee was not 100% convinced of the nature of the mistake in the proposal, and therefore it determined with the necessary caution that: "It appears that the royalty component was included in the other expenses section, which stands at NIS 144,500. The appellant will examine the significance of the submission of the proposal as it was submitted" (Appendix 12 to the Petition – Minutes of the Tenders Committee Meeting of May 24, 2023). The use of the word "seen", which is also used in paragraph 4 of the hearing letter sent to the Petitioner (Appendix 14 to the Petition), shows that at this stage the Committee assumed that this was the essence of the error in the Petitioner's proposal, but it was not sure of this, and rightly so. The Tenders Committee's hypothesis was based only on the fact that the amount stated by the Petitioner in the other expenses section was manifestly unreasonable, and on the fact that it was similar, but not identical, to the amount of royalties stated by the Petitioner in its financial proposal. The committee's hypothesis was very reasonable, but this hypothesis, however reasonable, did not allow the committee to amend the petitioner's proposal without first clarifying the matter with her, which is inconsistent with the terms of the Peony of the Grosh rule. And we will add that the correction of the defect in the Petitioner's proposal also required the amendment of the financing expenses section, an amendment that the Committee could not have carried out, even hypothetically, without accepting the Petitioner's position, because without accepting the Petitioner's position, the Committee could not extract from the financing expenses section the amount of the financing expenses relating specifically to royalties.
- The Petitioner argues that there was no reason to disqualify her proposal because the amendments required in her proposal are technical amendments whose execution requires simple and clear arithmetic actions. This argument is not convincing, since the arithmetic actions could have been carried out only after the Petitioner confirmed the Committee's hypothesis that the essence of the error was in the inclusion of the amount of royalties in the other expenses section instead of in the BSM clause. Had the Petitioner not approved the said hypothesis, then the amendment would not have been possible. Hence the conclusion is that the correction of the mistake necessarily transferred the capacity to the Petitioner, and thus it was given improper room for maneuver in comparison to all the other competitors. This is also the answer to the Petitioner's additional arguments, according to which whether before or after the amendment, its financial offer remained the same, and that its financial offer was the best of all the proposals submitted in the tender. These arguments are irrelevant since the correction of the mistake gave the Petitioner the ability to object to the acceptance of its proposal as it is by the Ministry of Transport. Secondly, the fact that the Petitioner agreed to amend her proposal, i.e., that it did not actually take advantage of the room for maneuver that was created for it, has nothing to do with it, since the inequality between it and the other competitors arose from the moment it was given the room to maneuver, with the advantage inherent in it, and regardless of whether it actually took advantage of it or not.
The Petitioner further argued that in any case of correcting a defect in the proposal, the bidder is necessarily given room for maneuver, since if he wishes, he will approve the amendment and if he wishes, he will reject it. This is not the case. Amendments that according to the Peony Rule are learned from the proposal itself, and which can be corrected by objective evidence in the hands of the tenders committee at the time of submission of the proposals, are amendments for which the consent of the bidder is not required, and in fact a bidder who objects to such amendments will be considered as having withdrawn his proposal without a justified reason, with all that entails. Therefore, defect amendments that meet the conditions of the Peony Hahoresh rule do not transfer the contractual capacity to the bidder.