However, even if it is assumed that it was possible to operate with an exemption from a tender as early as September 2011 and the Mapi tender has passed, this is a matter that is left to the discretion and decision of the Mappi, the ordering party. Mapi was not obligated to act with an exemption from a tender (e.g., Rubinstein, p. 3683, paras. 16-18). The possibility of operating with an exemption from a tender – even if it existed – does not mean that the engagement with Wei was guaranteed. Once a tender is published, the winner will be determined according to the rules of the tender – in our case: the cheapest bid will be selected – in a manner that undermines Wee's claims. When Mapi chose to launch the Mapi tender, it is clear that it wanted to receive genuine offers and not coordinated futile proposals. In any case, the tender participants were not permitted to coordinate the submission of the proposals.
- Fourth, even the additional indications pointed out by Wei and Oshri do not support the claim that the Mapi tender was a fictitious tender.
One indication was based on the fact that EMET's bid for the MAPI tender was not disqualified out of hand, even though it included a note, even in handwriting, regarding the issue of liability. Adv. Kirshner testified in general that insofar as it was a prerequisite and a proposer added a qualified comment, it is possible that they would have rejected the proposal or asked a question of clarification (p. 6416, s. 27 - p. 6417, s. 8), even though she did not know how to relate to the concrete case and noted that if she had paid attention to the comment in the EMET proposal, it might have sparked some discussion (p. 6418, s. 10 - p. 7419, Q. 18). It is possible that the comment that was added in the EMET proposal required an examination or clarification, and it is possible that the Ombudsman made a mistake in this matter or that the matter did not receive its full attention. It is also possible that because the EMET proposal was found to be more expensive (following the coordination) and its award was not on the agenda, the matter was not clarified (see also, p. 6425, paras. 18-20). In any case, this matter does not attest to the fact that the Mapi tender was fictitious. The argument that all the members of the tenders committee – seven in number (P/76) – did not intend to hold a real competition and joined together in a fictitious tender is unreasonable and no basis was laid for it.