"Another question is whether, assuming that Afikim's request had been handled properly, the ISBB was entitled to make a decision allowing its participation in the tender despite the substantial conflict of interest that was involved... At this stage, this is a hypothetical question, and as such I do not think it is appropriate for us to expand on it. I will note, however, that, in contrast to the trial court, I am not convinced that the disclosure made by Afikim should have led the Council to the conclusion that in light of its relations with Adv. Moshe, it is necessary to disqualify it in advance as a bidder. It is not impossible that such an examination could also have led to the conclusion that it is possible to deal with the fear of a conflict of interest - whether by imposing restrictions on Afikim, by imposing restrictions on Adv. Moshe or by other means (compare: M.G.A.R., at paragraph 15). In any event, I will leave this question in need of consideration."
(Electra Afikim case, at paragraph 27).
It should be clarified that the reason for the distinction between a consultant and a supplier does not lie in the fact that the supplier is not a public body, since various consultants are usually not employees of the authority but rather private entities. In any event, it was held that the rulings relating to the prohibition of being in a situation that raises a concern of a conflict of interest apply both to a private body that "advises or recommends to the competent authority", and to a private body "acting in the name of and on behalf of the public authority" (Appeal Petition/Administrative Claim 3405/19 National Committee for Planning and Construction of Preferred Housing Complexes v. Kibbutz Usha, at paragraph 12 (February 20, 2020); High Court of Justice 11745/04 Ramot for the Environment v. National Council for Planning and Building, at para. 15 (4 September 2008); Appeal Petition/Administrative Claim 4011/05 Dagesh Foreign Trade (Shipping) v. Ports Authority, at paragraph 43 (11 February 2008)). The reason for distinguishing between a consultant and a service provider lies in the fact that the relationship between the authority and its consultants is a close relationship of trust, whereas the relationship between the authority and its suppliers is that of a buyer and a seller or a service recipient and service provider. The special nature of the relationship between the Authority and its consultants is recognized in the Tenders Law in that in Regulation 5(a)(2) of the Tenders Duty Regulations, 5753 - 1993, it was determined that an engagement with consultants does not require a tender. Therefore, given that in the tender in question the status of Ness is of doubt, then it cannot be held that the result reached by the court in the judgments in the IBM and Electra Afikim cases - the disqualification of the tenders - is necessarily the final result that must be reached in the case of Ness - the disqualification of its bid. There is room to shred, as emerges from the Electra Afikim interest, that in case of doubt, it may sometimes be possible to suffice with a less extreme solution than disqualification.
- Indirect conflict of interest
Let us now examine the essence of the conflict of interest in question. I noted above that there is a certain concern about a conflict of interest. The concern is not based on Ness's direct ties with institutional bodies, but rather on the connections of corporations connected to Ness with institutional bodies. This is an indirect conflict of interest in nature, and as such by its very nature it raises less powerful concerns than a direct conflict of interest, as will be explained below.