The approach of the tenders committee is also consistent with the approach expressed in the case law and in the literature, according to which there is a concern according to which:
"If a participant in a tender submits a bank guarantee that does not match what is stated in the tender documents, does this not indicate that he is not worthy of winning the tender?..... If the participant made a mistake regarding the guarantee, is there no concern that even with regard to the work that he is required to perform (or regarding the other material matter in the tender, such as the provision of a service) he will make a mistake or not perform it correctly?"
(Appeal Petition/Administrative Claim 2628/11 Afcon Control and Automation in Tax Appeal v. State of Israel - Government Water and Sewage Authority [published in Nevo] (January 1, 2012) in paragraph 3 of the judgment of the Honorable Justice Grunis; See also Dekel at p. 536).
This is appropriate not only for defects in the guarantee, but also for the case before me, in which, as the tenders committee noted, the defect in the Petitioner's proposal did not fall in its side aspect, but in its central aspect, in respect of which an explicit and emphasized provision was set in the tender – clause 1.7 of Appendix 16 – so that the bidders would not make a mistake in the manner in which their bids were worded. Consideration should also be given to the fact that the tender we are dealing with is one of a number of tenders that are published from time to time in the field of public transportation. In view of the fact that this is not a one-time tender, and in view of the complexity of the service required in the framework of these tenders, the approach of the tenders committee, which insists on full and precise fulfillment of the tenders provisions, should not be condemned.
What emerges from the compilation is that there is no flaw in the approach that is reflected in the decision of the tenders committee, which chose not to use its authority to allow the amendment of the Petitioner's proposal. Therefore, there is no reason to grant the relief requested by the Petitioner at the beginning of her petition – "to determine that it is lawful to forgive the defect that occurred in the Petitioner's proposal". It should be emphasized that even after the petition was filed, the Ministry of Transport firmly insisted on its position that the Petitioner's proposal was disqualified by law, whether because it lacked the authority to permit the amendment or because according to its discretion there was no reason to permit the amendment, and it did not ask, not even hinting, that in the event that the court believes otherwise, the matter will be returned to the tenders committee for further consideration of the possibility of amending the Petitioner's proposal. As stated, I am of the opinion that there was no flaw in the position of the Ministry of Transport, for both reasons.
- In its arguments, the Petitioner emphasized its good faith and the fact that its proposal is economically and qualitatively superior to the other proposals submitted in the framework of the tender. According to the case law, these arguments do not tip the scales (Appeal of Petition/Administrative Claim 1873/12 Assum [published in Nevo] in paragraph 4 of the judgment of the Honorable Justice N. Hendel, as well as the judgment in the aforementioned Afcon case, where the Petitioner's proposal was disqualified due to a guarantee of kindness that was submitted on its behalf in good faith). For his purposes, what was written on this matter in the Yosef Khoury judgment mentioned above, is appropriate:
"We were under the impression that the appellant acted in good faith. It is regrettable that it did not succeed in adapting its proposal, which is better than the other proposals, to the requirements of the tender. True, respondent 3's proposal is significantly lower than the appellant's proposal; The public coffers would have benefited from receiving the appellant's proposal, but the tenders laws require strict observance of the "rules of the game". The principle of equality between the competitors in the tender requires equality in the terms of the engagement and the commitments that the participants in the tender are willing to undertake. This law should apply even when the bidder allegedly acted in good faith in the opinion that he was entitled to deviate from the language of the tender. The defect that occurred in the appellant's proposal is a material defect."