The Petitioner further argues that the "reduction mechanism" included in clause 28.7 of File No. 1 of the Ministry of Transport's responses to the clarification questions of the tender participants – Appendix 2 to the Petition) neutralizes all the consequences of the mistakes made in its proposal. According to what is stated in this section and its sub-provisions, when examining the business plan of each bidder, the committee calculates the cost per kilometer embodied in the bidder's proposal, based on the data in the plan. This cost was calculated by dividing the total operating expenses declared by the bidder in its bid, before the bidder, by the number of kilometers proposed by the bidder (clause 28.7.2.1). At the same time, the committee determined the cost per kilometer that was acceptable to it, in accordance with the average cost per kilometer of all the bidders or in accordance with the committee's preliminary estimate, whichever was lower (section 28.7.2.2). Further to this, it was determined that if the bidder's proposal exceeds more than 50% in relation to the cost per kilometer accepted by the committee, then half a point will be deducted from the grade that the bidder's business plan will receive, and also: "The amount of the difference between the exceptional cost presented in the plan and the cost acceptable to the committee will be deducted from the total operating costs of that bidder for the purpose of calculating the cost per kilometer in the proposal as stated in clause 28.7.2.1 above" (section 28.7.3.2). This section does not benefit the Petitioner, because it should have come into effect only after the amendment had been made in the Petitioner's proposal, but the amendment was not made, and rightly so. In any event, as clarified above, the fact that the Petitioner's financial offer did not change after the amendment does not justify the amendment in her proposal.
Therefore, I am of the opinion that there was no error in the Committee's decision that in the circumstances of the case it was not possible to correct the mistake made in the Petitioner's proposal.
- We will now deal with the second argument mentioned above, which concerns the manner in which the discretion of the tenders committee is exercised. In this context, I will say that even if I were of the opinion that it was possible to correct the defect that occurred in the Petitioner's proposal, this would not have led to the acceptance of the petition. The reason for this lies in the discretion that was given to the committee in such a situation whether to order the correction of the defect. As we shall see below, the Committee referred in its decision to a number of reasons that justified not correcting the defect even if it had the opportunity to order the correction, and in its opinion reasonable. It should be noted that the committee did not clearly divide its reasons into those relating to the question of the authority to correct the defect, and those relating to the question of how to exercise the committee's discretion. However, it can be clearly understood from the committee's decision that its opinion was not at all comfortable with the negligent manner in which the Petitioner fulfilled her proposal, and it can be understood that the Committee was of the opinion that there was no justification for correcting the defect from this aspect as well. Below, I will discuss things in order.
- There is no dispute that both according to the Tenders Laws and the case law dealing with tenders and in accordance with the provisions of the concrete tender that is under discussion before us, the authority given to the tenders committee to correct a defect in the proposal is in essence an authority of discretion (see – A. Dekel Tenders, Volume 1 (2004), p. 532 (hereinafter – "Dekel"); and see – the words of the Petitioner's counsel on p. 1 of the transcript at paras. 15-16). However, there is no doubt that the exercise of this authority must be done in accordance with the rules of administrative law, which obligate the Ministry of Transportation as a public administrative authority. Therefore, no real weight should be given to the provisions of the tender, which ostensibly sought to grant the tenders committee "exclusive discretion" in this context, as stated in clause 30.4 of the tender.
- The tenders committee explained the refusal to allow the amendment of the proposal, inter alia, to the fact that it did not take kindly the fact that the Petitioner did not take care to fulfill its proposal properly. This was reflected in the Committee's remarks in the minutes of its meeting of June 12, 2023, as follows:
"In this case, the defect itself is also joined by consideration of the intensity of the specific defect... Nahor should have carefully addressed all the instructions for the submission of the proceeding. In terms of the nature and intensity of the defect in this aspect, too, the tendency is not to legitimize the defect and to reject Nahor's proposal."