After these things, the Petitioner filed the petition before me. It should be noted that at the same time as the petition was filed, the Petitioner also filed a request for an interim order that would prevent the proceedings for the realization of the tender. The application was denied, and an application for leave to appeal filed by the Petitioner was also rejected without the Respondents being asked to respond to it (CAM 5760/23 Nehor Transportation Lines v. Ministry of Transport [published in Nevo] (31 July 2023)).
- The Petitioner's Arguments
The Petitioner argues that the question under discussion is a focused legal question, as defined by the Tenders Committee: "Is the main defect in Nehor's proposal – the registration of the financial proposal in the other expenses component and not in the Tenders component – a material or technical defect" (paragraph 4 of the Petition). In other words, there is no dispute that there was a defect in the Petitioner's proposal, and the question is whether it is a material defect that justifies the disqualification of its proposal, or whether it is a non-material defect that should be allowed to be corrected.
The Petitioner argues that the starting point for clarifying the said question is the determination of the tenders committee according to which the defect in the Petitioner's proposal is the result of a mistake made by the Petitioner in good faith. Further to this, the Petitioner argues that the defect in her proposal should not be regarded as a material defect because it is not a defect that gave it improper room for maneuver, and since the correction of the defect does not lead to a violation of the principle of equality.
The Petitioner argues that no violation of equality was caused due to the defect, because according to the Tenders Rules, the tenders committee neutralized the significance of the defect by means of the reduction mechanism determined in clause 28.7.3.2 of the tender, as amended in "Clarification Document No. 1" (Appendix 2 to the Petition). We will discuss the details of the reduction mechanism below.