"As a starting point, the rule is that this Court does not place its discretion in place of the discretion of the tenders committee, and that the tenders committee has discretion as well as the presumption of the propriety of the administrative act... This court will intervene in the decision of the tenders committee only when there is a material defect in the tender proceedings - a defect that violates the basic principles of the tenders law... Moreover, it has already been determined that the greater the complexity of the tender, the wider the discretion of the ordering party, and "in any case the scope of the court's intervention is reduced"... Finally, we would like to remind you that the more we are dealing with not only a complex tender but also decisions made after the exercise of professional judgment based on, inter alia, the opinion of experts, the more limited the intervention in the judgment will be."
(ibid., at para. 25).
Further to these words, I will review the circumstances of the matter below, and from them I will derive the final result that is necessary from the fact that there is a certain concern of a conflict of interest in the case of a miracle.
- The Status of a Miracle as a Doubter
I will begin with the issue of the status of a miracle. The Petitioner bases its arguments regarding the disqualification of Ness's proposal on judgments rendered in the matter of external consultants to tender committees in respect of which a conflict of interest was raised (High Court of Justice 2020/90 Y.B.M. Israel in TaxAppeal v. Ministry of Justice, IsrSC 45 (2) 265 (1990); Appeal Petition/Administrative Claim 24684-08-24 Electra Afikim in Tax Appeal v. Golan Regional Council (October 20, 2024)). In cases of this type, case law has taken a strict approach. However, our case is fundamentally different from those cases, since Ness is a service provider and not a consultant. This can affect the way in which the alleged conflict of interest should be viewed, and the argument that there is no choice but to disqualify Ness's proposal. The distinction that must be made between a consultant and a service provider in the context of the laws of independence, and the derivative of this difference with regard to the manner in which the conflict of interest should be dealt with, was discussed by the court in the Electra Afikim case: