The Ministry of Transport argues that allowing the Petitioner to amend its proposal would have violated the principle of equality between the bidders. In this context, the Respondent refers to the case law that insists on the importance of the meticulousness of each bidder in the tender to be meticulous and precise in the fulfillment of his bid.
The Ministry of Transport argues that the "mitigation mechanism" set out in the tender is intended to provide a solution to cases in which a bidder includes in his bid an unusual assessment of one item or another in the business plan, and it is not intended to deal with defects in the bidder's proposal.
The Ministry of Transport argues that the defect in the Petitioner's proposal is a defect whose correction will harm equality because the amendment of the proposal will require an update in the calculation of the average cost per kilometer, which will affect the score given to the business plans of all the bidders in the tender.
The Ministry of Transport argues that allowing the defect to be corrected will open the door to claims by other bidders that their proposals also contained a defect that requires correction by way of transferring sums from one item to another in the business plan.
- Egged Claims
Egged, naturally, agrees with the Transportation Ministry's claims.
Egged further argues that the petition should be dismissed because of an act that may have been done, because after the rejection of the Petitioner's request for an interim order, Egged entered into an agreement with third parties for the purchase of buses worth NIS 250 million, and it also spent an additional sum of approximately NIS 20 million for the purpose of preparing for the services in accordance with the tender.
Egged argues that the defect in the Petitioner's proposal should not be considered a technical defect, because it is a defect that fell at the core of the Petitioner's proposal – in the business plan, and since it is a defect relating to the manner in which a number of clauses were fulfilled in the financial proposal, which cannot be corrected without an in-depth examination and clarification, which according to the Tenders Law cannot be executed after the bids are opened in the tender, due to the violation of the principle of equality between the bidders. They are due to the improper room for maneuver that will thereby be given to the Petitioner.