The end of the section refers to section 89a(b) of the Regional Councils Order. Section 89A in its entirety does not deal with Council employees, but with Council members. Collective dispute A in which the council member is obligated to inform as well as to prohibit participation and voting, in matters in: "He has, directly or indirectly, by himself or through his relative, agent or partner or relatives, any part or benefit in any contract or business made with the council..." At the same time, Collective Dispute B in section 89A excludes certain situations from the prohibition, and states, inter alia, that:
"The provisions of subsection (a) shall not apply to a council member by virtue of being a shareholder or a member of a legal body who has a share or interest in a contract or business as stated in that subsection, unless that member served as a manager or responsible official in the legal body, or if his share in the capital or profits of such entity exceeds 5 percent."
It should be noted that a similar provision in relation to members of a municipal council is set out in section 122 of the Municipalities Ordinance, and in relation to members of a local council in section 103 of the Local Councils Ordinance.
- As stated above, the dispute between the parties is whether, according to section 59 of the Regional Councils Order, an engagement between the Council and a company owned by a spouse of a council employee is prohibited, as the Petitioner claims, or not, as the Respondents claim. The dispute is essentially exegetical. The question of the interpretation of this statutory provision must therefore be addressed, according to its language and taking into account the purpose underlying it.
- Linguistically, section 59 is worded broadly and flexibly. It refers to any part or benefit to the employee "directly or indirectly", "in any contract or business made with the Council", and prohibits the employee from receiving it "either by himself or by his spouse...".
According to this provision, and there is no dispute about it, the Council's engagement with the spouse of the Council employee is prohibited (even if the employee himself is not a direct party to the engagement). In addition, and it seems that the respondents do not disagree on this either, the prohibition is not limited to an engagement with the employee in flesh and blood, but also with a corporation of which the employee is the owner or manager.
- The very broad language of section 59, and its interpretation in principle also on the Council's engagement with a corporation from which an employee can derive a benefit, is well consistent with the interpretation according to which the section also applies to an engagement with a company owned by a spouse of the Council employee. This is because even in this situation, the employee, even indirectly and through his spouse, has a benefit in the contract with the Council.
- According to the respondents, the wording of section 59, which limits the prohibition in relation to certain corporate affiliations, implies that the prohibition does not apply to an engagement with a company owned by the spouse of a council employee. This is when the sifa speaks of the employee himself ("the employee should not be seen as having ...") and his own connection to the council's business ("if his connection to the council's business..."). In addition, the sifa refers as aforesaid to section 89a(b) of the Regional Councils Order, which deals with the connection of a council member to a corporation and not to the spouse of a council member. Accordingly, the prohibition applies only to an engagement with a company owned by the employee himself, as opposed to a company owned by his spouse.
- I do not see fit to accept this argument. Linguistically, section 59 of the order is worded in its entirety with respect to a council employee. The preamble of the section in which the prohibition was established revolved around the benefit or part of the employee in any contract with the Council. The legislature also included in the prohibition such a benefit that comes to the employee "by his spouse", in other words, such a benefit is also perceived as "associated" with the employee. In view of the structure and language of the section, the wording of the clause, which is also focused on the employee, does not indicate a distinction between the employee and his spouse in the context at hand. Once it has been explicitly determined that the prohibited benefit is for the employee, whether by himself or by his spouse, the exception at the end should be read accordingly with respect to circumstances in which the employee will not be regarded as having a share or benefit as aforesaid.
- As for section 89a(b) of the Regional Councils Order, to which the end of section 59 relates; the aforementioned section 89a(b) should be read as part of the overall arrangement set out in the order regarding the duty to inform and prohibit the participation of a council member in relation to an engagement with the council to which he is a relation. Section 89A(a) establishes the rule of the duty of disclosure and prohibition of participation that applies to "a member of the Council who has, directly or indirectly, by himself or through his relative, agent or partner or relatives, any part or benefit in any contract or business made with the Council...". Section 89a(b) states that this rule will not apply to "a council member by virtue of being a shareholder or a member of a legal body... Unless that member serves as a manager or responsible official in the legal body or his share of the capital or profits of such a body exceeds 5 percent." The Respondents' arguments imply that according to their approach, the exception set forth in section 89A(b) applies only in relation to a company in which a member of the Council is a shareholder, but not to a company in which his spouse is a shareholder. This argument is ostensibly consistent with the language of collective dispute B above when it stands on its own, but it leads to an unreasonable result in reading the comprehensive statutory arrangement.
First, the same rule set forth in section 89A(a) (to which the exception in a collective dispute B relates) applies to the employee's relatives and to his "relatives". In view of the definition of "relative" in the aforementioned section, which includes, inter alia, a spouse as well as a corporation under the conditions set forth therein, the prohibition explicitly applies to the corporate affiliation of the spouse as well. Second, alongside the determination of the duty to inform/prohibit participation as aforesaid, the Regional Councils Order establishes a prohibition on the engagement itself with a council member. In this regard, section 89B(a) of the order states that "a council member, his relative, agent or partner, or a corporation in which one of the aforesaid has a share exceeding ten percent of his capital or profits, or one of whom is a manager or a responsible employee thereof, shall not be a party to a contract or transaction with the council." Thus, with regard to the prohibition of engagement by the Council with a council member, the law clearly and explicitly states that it also applies to an engagement with a company owned by the spouse of the council member (under the conditions set forth therein). The argument that it should be concluded from the wording of the exception in section 89A(b) that the prohibition of participation/duty to inform a council member does not apply in relation to an engagement with a company owned by his spouse, leads to the result that the scope of the prohibition of engagement is broader than the scope of the prohibition of participation/duty to inform a council member in this context. This result is extremely difficult, since it is reasonable to assume that a gap in this matter should be the opposite.
- The conclusion is that when examining the language of section 59 of the Regional Councils Order, the interpretation claimed by the Petitioner is consistent with it, at least within the scope of another possible interpretation to the one advocated by the Respondents.
- As to the purpose of the legislation, I am of the opinion that it supports the interpretation that section 59 of the order also applies to an engagement with a corporation owned by the spouse of a council employee (with the exceptions set forth therein), for the reasons that I will discuss below.
- First, the purpose underlying the provision of section 59 of the order is in essence to prevent a fear of a conflict of interest in the Council's engagements. Given the breadth of the prohibition set forth in the order and the additional legislation mentioned above, in the sense that it does not distinguish between one position or another of a council employee, or between the existence or absence of a direct connection between the position and the engagement, it appears that in this context the legislature has given significant status to the consideration of appearance for the purpose of ensuring public confidence in the proper and substantive operation of the public administration. This is especially the case when it comes to engagements of local authorities, which are particularly "sensitive" to the issue of conflict of interest; "The closeness between the elected and clerical echelons in the local government and those with interests in the local authority, including family ties, personal acquaintances and ties of economic interests, is greater than in the central government, especially in small municipalities..." (High Court of Justice 415/19 Levy v. Minister of the Interior (21 April 2020), ibid., at paragraph 22). Against the background of the above, it is difficult to see the justification for distinguishing between the engagement of the local authority with the spouse of the employee of the authority, which is strictly prohibited by law, and an engagement with a company owned by the spouse. It seems that the level of damage to protected values is the same.
- Second, the prohibition set forth in section 59 of the order is sweeping in terms of its application with respect to all employees of the Authority, but it is relatively limited in terms of the definition of the affiliation that disqualifies an engagement with the Authority. The prohibition is for the benefit of engaging with the employee himself or by his spouse (as well as his partner/agent). It does not apply to the Council's engagements with other family members of the employee (including those who are normally considered "in the first circle" in terms of the fear of a conflict of interest, such as parents, descendants, etc.). This is in contrast to other provisions of the law, which prohibit engagements with a wider circle of family members (see, for example, the provisions prohibiting engagement with a council member and his relative, in sections 103A of the Local Councils Ordinance, section 122A of the Municipalities Ordinance and section 89B of the Regional Councils Ordinance, which include a "relative" – spouse , parents, sons, siblings). What is implied by the aforesaid is that with regard to the prohibition of engagements with the employees of the Council, the focus is on the material interest of the employee himself, as opposed to a more indirect interest that he may have due to the interest of his relatives. This rationale is also learned from the other connections included in the section – the employee's partner or agent. The scope of the prohibition that includes a benefit through the employee's spouse embodies a reasonable assumption, anchored in the reality of life, that the existence of a joint family unit creates a material benefit for the employee in an engagement made with his spouse (see: Tana Spnitz, Conflict of Interest in the Public Sector in Practice (2013), 74). This assumption is not affected by the question of whether the family or spouse's business is managed through a company or not.
- Third, and further to what has been said, acceptance of the Respondents' interpretation means that while the Council's engagement with the spouse of an employee is prohibited by the law of freedom, an engagement with a company that he owns or manages is not subject to the same statutory limitation. The result may be that relatively "modest" engagements are strictly prohibited by virtue of the Regional Councils Ordinance, while large-scale engagements and complex projects, which are typically conducted with business corporations, are not subject to the same norm. On the face of it, this is inconsistent with the purpose underlying the legislation.
- Fourth, the distinction between an engagement with a flesh-and-blood spouse and an engagement with a corporation that he owns, does not correspond with the general approach that is practiced in case law and legislation with respect to the prohibition of conflict of interest. A review of case law in the field of conflict of interest shows that the corporate's velocity, in itself alone, was not ordinarily a significant figure in analyzing the existence or absence of a material conflict of interest due to a personal interest (see, for example, the analysis in the case of the High Court of Justice 202/90 B.M. Israel in the Tax Appeal v. Ministry of Justice et al., IsrSC 45(2) 265); See Spnitz, ibid., at p. 89; 450-451). Even with regard to the specific issue of the engagement of local authorities with their employees or relatives, examples can be found in the rulings of the administrative courts of applying the statutory prohibition on engagements with corporations that are owned/managed by the spouses of employees. Thus, in Administrative Petition 26045-11-11 (Be'er Sheva District) Freddy's Holdings in a Tax Appeal v. Arad Municipality et al. (March 22, 2012), a petition against the decision of the Municipality's Tenders Committee, to disqualify an offer submitted by a company whose owner and manager is married to the Mayor's Office Manager, was rejected, on the basis of Section 174 of the Municipalities Ordinance. In Administrative Petition 59904-03-11 (Central District) M.G.A.R. Center for Computerized Collection in Tax Appeal v. Municipality of Rehovot et al. (July 26, 2011) (appeal to the Supreme Court was rejected by consensus), a petition was accepted against winning a tender for a company whose manager is the husband of the Municipality Treasurer, based on, inter alia, section 174 of the Ordinance.
In legislation as well, many examples can be found of the prohibition of applying a conflict of interest in circumstances relating to a corporation in which a public figure or his relative has an interest (see, for example, several others: section 122a(a) of the Municipalities Ordinance mentioned above; Section 47 of the Planning and Building Law, 5725-1965, and the definition of "relative" in Section 1 of the Law; Section 9 of the Encouragement of Capital Investments Law, 5719-1959; Section 36 of the Dairy Farm Planning Law, Civil Appeal – 2011).
- In addition to the above, I will add and note that a review of the tender documents in question shows that in practice the Council did not act in a manner that is appropriate to the interpretation it seeks to give to section 59 of the order. As already noted, in the framework of the tender documents, each bidder is required to attach, inter alia, to his proposal an "affidavit of lack of proximity to the Authority employee and/or to the members of the Council" (Appendix H to the tender documents). The text of the affidavit details the provisions of the Regional Councils Order regarding the prohibition of the Council's engagement with the Council's employee or council member and the persons listed therein, including the provision of Section 59 of the Order. The signatory of the affidavit, including a corporation, is required to declare, among other things, that "I do not have a spouse, partner or anyone whose agent I am working for the Authority." It should be noted that this wording is prima facie, inter alia, due to its reference to the declaration of the corporation itself, as opposed to its representatives (unlike the wording of other affidavits included in the tender documents, see, for example, Appendices 7, 9, and 13 there). However, in any event, it reflects that the declarant on behalf of the company is required to declare the absence of a spouse (or partner or agent) who works for the council. The Council's argument that section 59 of the order is not at all relevant to an engagement with a company whose shares are owned by a spouse of a Council employee, is prima facie inconsistent with the requirement for such an affidavit. I will add that in this case, the person who signed the affidavit on behalf of Ron Avodot is Mr. Moshe Cohen, the additional shareholder who holds the second half of the company's shares (and the spouse's brother), and he declared, as stated, that there was no kinship of the type in question. In view of the wording of the affidavit that was required to be signed as part of the tender documents, I am of the opinion that Sharon should have worked on an affidavit regarding the connection of one of its owners to the council employee, or at least contacted the tenders committee for clarification as to whether such a declaration is required. Such a request would have allowed the committee to be required "in real time" for the provision of section 59 of the order, including by obtaining an orderly legal opinion, which was not done.
- Another argument raised by the respondents is that section 59 of the order should be interpreted in accordance with parallel statutory norms that apply in relation to the municipality, which are set forth in sections 174 and 175 of the Municipalities Ordinance. Section 174 of the Ordinance states that "a clerk or employee of a municipality shall not be concerned or interested, directly or indirectly, by himself or by his spouse or partner or agent, in any contract entered into with the city and in any work performed on its behalf." Section 175 qualifies the said prohibition by stating that: "Notwithstanding the provisions of section 174, a person shall not be disqualified and shall not be liable to a fine merely because he is one of the following: (1) a shareholder in a company, or a member of a cooperative society, which is a party to a contract with the municipality or performs work for it, and is not a manager, business manager, clerk or agent of that company or cooperative society. ...". According to the respondents, according to this statutory arrangement, a municipality's engagement with a corporation owned by a municipality employee is not prohibited. Therefore, the provision of section 59 of the Regional Councils Order (and the corresponding provision in the Local Councils Order) is stricter with council employees than with municipal employees, and the gap should not be further widened by the provisions of the order being interpreted as prohibiting engagement even with a corporation owned by the employee's spouse.
- On the face of it, this argument is captivating, but I am of the opinion that it does not tip the scales. First, it is doubtful in my opinion whether the meaning of the aforementioned section 175 is that the Municipality 's engagement with a corporation owned by an employee of the Municipality is not prohibited at all under section 174 of the Ordinance. Section 175 implies that the fact that the employee is a shareholder in the company does not invalidate an engagement by the municipality with it "from that name only". However, this does not necessarily result in the absence of application of section 174 when there is an affinity that is not limited only to the ownership of (any) shares, such as when a controlling shareholder is involved. Second, and assuming that there is an alleged gap between the two systems of law, an examination of the legislative history shows that the provision of section 59 of the Order as drafted today was enacted at the time the provisions of the Ordinance were in place, and despite this, the legislator of the order saw fit to establish a different arrangement. Sections 174 and 175 of the Municipalities Ordinance were included in the original version of the Ordinance in 1964 and have not been changed since. On the other hand, section 59 of the order as it is currently drafted is the result of an amendment made to the Regional Councils Order in 1997. Moving on to the amendment, the section included the prohibition on the resha as it is today, but limited its application to the extent that the employee's connection to the council's business is that he is a member of a legal body (of which he is not its manager, agent or partner). In other words, a norm similar to that in section 175 of the Municipalities Ordinance. However, the wording of the aforementioned restriction was repealed in the amendment, in which section 89a(b) was added to the order (in the matter of a council member) and the end of section 59 was amended by way of a reference to it. The subordinate legislator, therefore, chose to establish a later and different arrangement than that in the Municipalities Ordinance. In these circumstances, it seems that there is a difficulty in imposing the provisions of the Municipalities Ordinance directly on our case. In the aforementioned context, I will also revert to the above details regarding the approach used in more recent case law and legislation, which does not view the separate legal personality of a company as preventing a conflict of interest in itself (regarding the lack of timeliness of the arrangement in the Municipalities Ordinance in this context, see: Shalom Singer, Local Government Law – Present and Future (2013), at p. 420).
(It should be noted that in the framework of the Municipalities Bill, 5767-2007, which was submitted at the time as a comprehensive government bill, it was proposed to establish uniformly for all local authorities a prohibition on an employee of the authority or his relative from being a party to an engagement with the authority, directly or indirectly. The definition of "relative" in the proposal included, among other things, a spouse as well as a corporation in which the employee or his relative holds profits at a rate of more than 5% or his manager. However, this proposal was not advanced (Government Bill, 292, pp. 369, 414, para. 148 ibid.)).
- My conclusion from all of this is that section 59 of the Regional Councils Order prohibits the Council from entering into a contract with a company owned by the spouse of the council employee (to the extent that his share in the company's capital exceeds 5% or he is a manager). In our case, the spouse holds 50% of the shares of Ron Works, so that engagement with her is prohibited by law.
The General Prohibition on Conflict of Interest:
- Beyond necessity, in view of my conclusion above, I will add that in my opinion, even an examination of our case on the basis of the general prohibition on conflict of interest, leads to a similar conclusion regarding the invalidity of the decision. This is in view of the relationship of the council employee to those involved in the tender, with an emphasis on the council's engineer.
- There is no dispute that none of the council employees who were involved in the tender have their own personal interest in the results of the tender. However, "a personal conflict of interest exists not only when the conflicting interest is that of the authority holder himself, but also when it is in the interest of a person or body close to him" (Levy case, supra, para. 18). When it comes to personal or professional acquaintance that the authority holder has with the person in whose case he is engaged (as opposed to, for example, family damage), the nature and degree of the connection must be examined on its merits in terms of the concern of a conflict of interest. Each case will be examined on its own merits with its concrete data, and in this context consideration must be given to the nature of the connection in terms of its content, duration, degree of intensity, the extent of its relevance to the matter at hand, etc. Against this background, it is necessary to consider whether the connection to the public office holder is material to the extent that it raises a concern of a conflict of interest (see: Dafna Barak Erez, Administrative Law, Vol. 1 (2010), pp. 548-549; Spnitz, ibid., pp. 447-449).
- In our case, and as the respondents claim, Ms. Eliyahu, the spouse of one of the owners of Ron Works, was not directly involved in the tender and does not even serve in a senior and influential position in the Council. In this way, the circumstances of the case at hand differ from the circumstances of the case discussed in the Metropoli-Net case above, on which the Petitioner relies, inter alia, in which it was disqualified from winning a tender by a company that employed (part-time) the sister of the Council's treasurer. This was a senior position holder in the council, and according to the facts of the meeting, she was even involved in the tender proceedings. In the decision to transfer the place of discussion in the matter of M.G.A.R. above, to which the Petitioner also referred, we were dealing with circumstances in which the husband of the Council's Treasurer served as an officer of the winning company/a related company, and the tender dealt with collection actions involving conduct with the Municipality's treasurers. It is clear that the circumstances of our case are different from these.
- However, in this case, there are other specific circumstances and connections that must be taken into account. As detailed above, Ms. Eliyahu works in the Council's Engineering Department as a secretary, including serving as the council's engineer's secretary. In the hearing held in the petition, and in response to the court's question, the council's engineer replied that the department dealing with projects of the type of the tender in question includes only three employees: himself, Ms. Eliyahu (the spouse) and an inspector. He also noted that the department also includes the local planning and building committee, which is not connected to such projects, and has about 15 employees (p. 11 of the minutes, paras. 24-30). After the discussion, the Council requested to complete at this point a diagram of the organizational structure of the Engineering Department and for the purpose of clarifying the infrastructure, and such completion was allowed. The document attached by the council indicates that the structure of the department includes the field of construction and infrastructure, as well as the local planning and building committee and the business licensing department. It should be noted that the infrastructure laid by the council in this matter is somewhat ambiguous. Thus, with respect to Ms. Yaakov (who conducted the talks with the recommenders in the tender), and in respect of whom the Petitioner also claimed a conflict of interest due to her joint work in the Engineering Department with Ms. Eliyahu, the Council noted in its response that the aforementioned employee serves as the secretary of the Local Planning and Building Committee (paragraph 16 of the reply). This presentation ostensibly makes a distinction between the employees of the Planning and Building Committee and the employees of the Engineering Department. Ron Avodot, for her part, emphasized in her reply that Ms. Yaakov does not work in the Engineering Department (paragraphs 45 and 103 of the reply). This ambiguity falls to the respondents, especially at the current stage of the proceedings (after the submission of a reply). In any event, and even with reference to the council's diagram, it appears that this is not a large department and that Mrs. Eliyahu is directly subordinate to the council's engineer in her work as
- The above circumstances show that there is a direct, ongoing and day-to-day working relationship between Ms. Eliyahu and the Council Engineer. The specific tender is for the execution of infrastructure works within the council's area, and the council's engineer has direct involvement in it as a member of the professional team. It is clear that Ms. Eliyahu's spouse has a financial interest in the success of the company of which he is one of the owners, including its winning of the tender. Eliyahu as his spouse has a similar interest. The decision on the agenda therefore relates to the material interest of an employee who has a close employment connection to the person involved in evaluating the bids in the tender. And to be precise; This is not an acquaintance due to past work relationships, specific or non-continuous relationships, or a workplace where there are many employees who have a relationship with each other in general work. A professional acquaintance whose characteristics of this type will not generally establish a sufficient concern of a conflict of interest. However, in our case, the professional affinity is different and close in its characteristics in terms of its continuity, frequency and directness, as detailed above. In these circumstances, I am of the opinion that the fear of being in a conflict of interest is not remote, or purely theoretical, but real. Moreover, in examining the question of conflict of interest in the context at hand, it is not possible to ignore the statutory and specific normative background that prohibits, as aforesaid, categorically an engagement between the Council and any of its employees or spouses of its employees, which reflects the position of the subordinate legislature as to the proper norm in this regard. As I have already noted, the basis of the said prohibition is, inter alia, the consideration of appearance, in terms of ensuring the public's confidence in the proper operation of the local authority, a consideration that has application in the circumstances of the present case, as detailed above. All the more so in the specific field of tenders and with regard to the trust of all the participants in the tender.
- To this, it should be added that the question of conflict of interest is examined not only at the point of selection in the tender, but also from a forward-looking perspective. In our case, given the subject matter of the tender, there may be a future launch between the company and the council's engineering department. It should be recalled that Ron Works mentioned in its proposal the council's engineer as a contact person regarding previous projects in her field of work that she carried out for the council. To teach you that in the execution stages there is a launch between the council's engineer and the executing company. This is also implied in the Council's reply regarding the acquaintance that the Petitioner, who is engaged in the field of carrying out infrastructure works, has with the officials of the Council's Engineering Department against the background of projects it has carried out for it in the past (paragraph 35 ibid.). In this aspect as well, there is a difficulty in the fact that the spouse of one of the company's owners serves as a secretary to the council's engineer. I will note, however, that insofar as this matter stood on its own, there was room to examine the determination of rules that would prohibit the employee from any contact or treatment relating to the projects that are the subject of the tender, and in this spirit the Council's counsel did indeed propose in the discussion that took place, but as stated in our case, this is not an exclusive difficulty.
- Ron Works argues that even if we "neutralize" the effect of the score given by the Council's engineer to the Petitioner's proposal and Ron Works' proposal, as part of the overall score of the professional team, based on the score given to the proposals by the other team members, this would not have changed the result of the Petitioner's non-winning. Hence, even if it is determined that there was a defect of a conflict of interest, there is no causal connection between the defect and the result, and there is no justification for disqualifying the decision. This argument is mine-based. First of all, we should mention that the prohibition on being in a conflict of interest is not examined as a rule according to its results and does not require proof that the conflict of interest was actually realized. Second, in accordance with the case law, the fact that one of the members of the administrative body is tainted by a conflict of interest is sufficient to impair the decision that was made, even if the position of the other members of the body was sufficient to bring about that decision. In this context, it was held that the prohibition on conflict of interest includes not only refraining from making a decision, but also refraining from being present and taking part in the hearing, in order to ensure the proper conduct of the proceedings and the absence of influence on the other members of the body (see: High Court of Justice 3480/91 Bergman v. The Building, Residential and Industrial Committee, IsrSC 47(3)); High Court of Justice 788/90 Zohar Hutzot in Tax Appeal v. Ramla Municipality, IsrSC 44(3) (1990) 843; High Court of Justice 3751/03 Ilan v. Municipality of Tel Aviv-Jaffa, IsrSC 59(3), para. 28).
- The Petitioner claims a conflict of interest even because the Council's engineer was noted as a recommender in Ron Works' proposal. I do not see fit to accept this argument. It should be noted at the outset that a review of the tender documents and the proposal shows that this is not one of the recommendations attached by Ron Works, but rather a list of past projects that each bidder is required to detail in his proposal to prove previous experience, while next to each project the details of a contact person on behalf of the client in that project were noted. In this context, the name of the council's engineer was mentioned alongside projects that Ron Engineering had carried out in the past for the council. As part of the tender, the Council was contacted by two of the lists of recommenders, who were asked to rate their impression of their experience with the bidder. In the case of Ron Works, a referral was made to other parties that have no connection to the council's engineer. In these circumstances, no basis was laid for determining the impropriety of a conflict of interest (see: High Court of Justice 496/81 Abd al-Latif v. Ministry of Education and Culture, IsrSC 36(2), 415, 421; Civil Appeal 3744/94 Ibn Habonim v. Arbel, IsrSC 50(5), 59, 65; Omer Dekel, Tenders, Volume Two (2006), p. 45).
The arguments regarding the scoring of the proposals:
- In view of my conclusion above, there is no need to discuss the Petitioner's arguments regarding the manner in which the proposals were scored. However, for the sake of completeness, I will briefly refer to each other.
- On this issue, I do not find it acceptable to accept the Petitioner's arguments. The Petitioner's arguments focus on the score given to it by the professional team, which is lower than that given to other competitors. These arguments go to the root of the professional judgment, which also includes an element of direct impression in the meetings held by the team with representatives of the various bidders. The court does not put itself in the shoes of the competent administrative bodies and does not decide in their place, especially in such matters of evaluation and scoring between competitors, but only to the extent that it is proven that there is a defect that goes to the root of things. In our case, the Petitioner has not been able to establish such a defect.
The result/remedy:
- What emerges from all of this is that the Council's engagement with Ron Works is prohibited by section 59 of the Regional Councils Order, and therefore its bid cannot be accepted in a tender. In the circumstances at hand, and since we are dealing with a statutory provision, there is no choice but to disqualify her proposal. Therefore, there is also no room for granting the remedy of restoring the matter to a discussion in another professional forum to be appointed by the tenders committee, as the alternative argument of the Council, since this will not cure the aforementioned legal defect.
- The petition is therefore accepted, in the sense that I order the cancellation of the decision regarding Ron Works winning the tender.
- However, I do not see the granting of relief that determines that the Petitioner wins the tender, but rather I instruct the tenders committee to reconvene for the purpose of making a decision on the matter in the framework of the tender. This is in view of ISBB's argument regarding the provisions of the tender with regard to the authority of the tenders committee in relation to the selection of the winner (its authority not to choose the cheapest bid or the bid at all in circumstances that justify it in accordance with clause 8.6 of the tender terms), and given that this is in fact also the relief requested in the petition (clause 2 of the petition's remedies). Needless to say, a decision in this matter is of course subject to the Tender Rules and the Tenders Laws, with all that derives therefrom.
- The Council and Ron Works will bear the Petitioner's expenses in the sum of NIS 10,000 each.
- The Petitioner will bear the expenses of the Valley Water in the sum of NIS 7,000. This, given the Petitioner's insistence on remaining it throughout the proceeding, even after it was clarified that the remedies of the petition did not concern her, when with regard to the amount I took into account the extent of Mei HaEmek's involvement in the proceeding, which was relatively limited.
The Secretariat will provide the parties with