"The rule is that it should not be said in advance that in any case of a conflict of interest, the result is that the office holder is disqualified from fulfilling his position. "... The tendency is to first consider the application of more moderate measures, and only as a last resort to take this extreme measure" (Justice Or in the case of the High Court of Justice 7279/98, supra [6], at p. "... The rule must be applied in a cautious and responsible manner, because its use in an extreme and unbalanced manner is liable to distance good and talented people from the positions they are suitable to fill, without any real concern of harm to the integrity of morals" (Justice Strasberg-Cohen in the case of the High Court of Justice 6983/94, supra [3], at p. "The tendency is usually to legitimize and not to disqualify" (ibid.).
(Civil Appeal 6763/98 Carmi v. State of Israel , IsrSC 55(1) 418, at para. 9 (2001)).
The principle regarding the prohibition of being in a situation that raises a concern of a conflict of interest also applies to private entities acting on behalf of or for the public authority, and I will address this below.
- Tender Provisions Regarding Conflict of Interest
Further and as a complement to the ruling cited above, it was determined in clause 1.5.4 of the tender that in certain circumstances a doubter may be selected as the winner of the tender in respect of which there is a concern of a conflict of interest, provided that it is: "a non-real concern of a conflict of interest, and that in the circumstances of the matter the committee is of the opinion that there is no justification to prevent the bidder from submitting a proposal" (clause 1.5.4(d) of the tender). It should be emphasized that the Petitioner does not attack, and cannot attack, this provision (see the words of the Petitioner's counsel at p. 25 Q. 21 - P. 26 S. 5), since it did not do so before the deadline for submitting the bids had passed and before the winner of the tender was declared the winner (Appeal Petition/Administrative Claim 1456/23 Zvi Ben-Eliezer v. State of Israel Ministry of Finance, Accountant General and Ministry of Defense (December 10).23)). However, the Petitioner argues that according to the ruling ruled in the appeal in Petition/Administrative Claim 1873/12 Assum Building Contracting Company v. Ben-Gurion University of the Negev (August 6, 2012), the provision of clause 1.5.4(d) of the tender should be interpreted in such a way that the committee's authority to approve the award of a supplier in respect of which there is a concern of a conflict of interest, is limited by the rules set forth in this regard in case law. In other words, the Petitioner argues that to the extent that the Committee purported to take discretion and legitimize proposals that, according to the case law, should have been disqualified due to a fear of a conflict of interest, such a pretense would not endanger it. This argument does not help the Petitioner. First, in the case law, voices were heard calling for a reconsideration of the approach expressed in the Assum ruling (Appeal Petition/Administrative Claim 20037-03-25 Zohar Hutzot in Tax Appeal v. Kiryat Ono Municipality, at paragraph 25 (April 22, 2025)). and secondly, and this is the main point, the provision of clause 1.5.4(d) of the tender does not deviate from the rules set out in the case law in this regard. As I noted above, the principle regarding the prohibition of being in a conflict of interest is not absolute. I also noted that even given the existence of a concern of a conflict of interest, this does not necessarily mean the immediate and complete disqualification of the bidder's proposal in respect of which there is such a concern. This depends on the circumstances of the case and the question of whether it is possible to provide a reasonable response to the aforementioned concern, with the guideline in this regard being that as far as possible, a less extreme step should be preferred than disqualification. Thus, in connection with the awarding of the Israel Prizes, it was ruled in the case of the aforementioned Legal Forum for the Land of Israel, that a decision of the members of the Israel Prize judging committees "due to their professional and even personal relationships" with any of the nominees for the prize should not be disqualified, because such disqualification "is liable to fundamentally thwart the purpose for which the Israel Prize institution was established and operates", in view of the aspiration that the prize committees will naturally be composed of first-rate professionals who are naturally "in a small country like Israel and in relatively small professional sectors" - They have acquaintance and connections with any of the nominees for the prize (ibid., in paragraph 28 of the judgment). Specifically, these words were said regarding a conflict of interest in which a member of a "judicial committee" is located, i.e., a person who holds authority that is beyond technical administrative authority.
- The question under discussion
If so, the question that requires a decision in the petition before me is not whether there is a concern of a conflict of interest of Ness, but whether there was a defect in the decision of the tenders committee according to which in the overall circumstances of the matter, and in light of the provisions of the case law and the tender, there is no justification for disqualifying Ness's proposal despite the existence of a certain concern of a conflict of interest. Before I discuss this question, I will refer in agreement to what was decided in a previous proceeding between the parties (Administrative Petition (Jerusalem) 45692-11-12 above), regarding the court's limited scope for intervention in such cases: